ITC

In Suprema v. ITC, an en banc review of a panel decision reversed precedent, holding that ITC can block importation of goods that do not directly infringe, but have the potential to infringe U.S. Patents once combined with other items. The en banc court found that the phrase in Section 337 of the Tarrif Act of 1930, “articles that infringe” is “short hand” and refers to 35 U.S.C. § 271, the statutory provision defining infringement. In that statutory provision, the word, “infringement” encompasses both direct and indirect infringement, including infringement by importation that induces direct infringement of a method claim. The court noted that disparity in language between 337 and 271 is attributed to the in rem language of Section 337 and the in personam language of § 271. The court looked to the history of § 271 to find that Congress “has not directly answered whether goods qualify as 'articles that infringe' when the Commission has found that an importer used such goods, after importation, to directly infringe at the inducement of the goods' seller.” In accordance with Chevron, the court then found that the Commission's interpretation is not unreasonable and is consistent with the statutory language, even though it is not the only possible interpretation, and that the Commission reasonably determined that its interpretation would further the purpose of the statute.