Commission Extends Target Date In 833 Investigation To Accept Public Comments On Electronic Imports

In an Initial Determination issued on May 6, 2013, the ALJ in Certain Digital Model, and Treatment Plans for Use in Making Incremental Dental Positioning Adjustment Appliances, Inv. No. 337-TA-833, found that the Commission has jurisdiction to address electronic importations as “articles” under 19 U.S.C. §1337.  Following Certain Hardware Logic Emulation Systems, Inv. No. 337-TA-383, the ALJ recommended the entry of a cease and desist order, but not a limited exclusion order, that prohibits the importation of certain digital data sets that directly infringe and/or contribute to the direct infringement within the United States of certain method claims of the asserted patents directed to fabricating appliances and/or aligning using such data sets.  In Hardware Logic, the Commission refused to issue a limited exclusion order barring importation of electronic transmissions out of deference to Customs, which would have no way to enforce the order.  On January 24, 2014, the Commission issued a Notice extending the target date to March 21, 2014, so that the Commission can consider briefing and public comments on whether electronic transmissions are “articles” within the meaning of Section 337 and potential relevant judicial precedent, such as Bayer v. Housey Pharmaceuticals, 340 F.3d 1367, 1373-74 (Fed. Cir. 2003), Suprema v. ITC, 2013 WL 6510929 (Fed. Cir. December 13, 2013) and Hardware Logic.  Written submissions must be filed no later than close of business on February 3, with Reply Submissions by February 10, 2014.