The scope of the United States International Trade Commission’s ability to prevent infringement from abroad may have just been significantly reduced. On March 31, 2016, the Federal Circuit Court of Appeals issued an order denying petitions by the International Trade Commission (“ITC”) and Align Technology, Inc. seeking a rehearing en banc of the Federal Circuit’s November 10, 2015, opinion in ClearCorrect v. Intl Trade Commn, 810 F.3d 1283 (Fed. Cir. 2015), which had held that the ITC’s jurisdiction under 19 U.S.C. section 1337 extended only to “material things,” and did not cover the electronic transmission of digital data. (For further discussion of the November 10 ClearCorrect Opinion, see my previous post here, and Lisa Baird’s post in Reed Smith’s Life Sciences Legal Update here). The Order was nearly unanimous, with only Judge Pauline Newman filing a lengthy dissent. With a rehearing and potential reversal by the full Federal Circuit bench now officially off the table, only a reversal by the Supreme Court or an Act of Congress can bring digital transmissions within the ITC’s jurisdiction. And a petition to the Supreme Court may be forthcoming. Shortly after the Order was issued, Align Technology released a statement to its investors, indicating that Align was “conferring with the Commission regarding appropriate next steps, including the possibility of seeking review from the Supreme Court.”
Continue Reading Update: Federal Circuit Declines to Reconsider ITC Jurisdiction over Electronic Transmissions of Digital Data