In ClearCorrect v. ITC, issued on November 10, 2015, the Federal Circuit interpreted the term “articles” as used in Section 337 to be tangible, physical items. Accordingly, electronic transmissions were held to be outside the scope of litigable subject matter—reversing the Commission’s earlier opinion in In re Certain Digital Models, Inv. No. 337-TA-833 (Apr. 3, 2014).

Background -

The dispute was based on a complaint filed by Align Technology who makes Invisalign® clear dental aligners. The respondents, ClearCorrect US and ClearCorrect Pakistan, were accused of gathering dental information from patients in the U.S., exporting that information to Pakistan for processing, and importing that information back into the U.S. to create competing dental aligners. The Commission ultimately found in its final determination that the imported data was an “article” within the meaning of Section 337 that contributed to the infringement of the claimed methods, and issued a cease and- desist order against ClearCorrect. Both parties appealed this finding to the Federal Circuit.