The Scope of [Section] 337 Post-Suprema, Inc. V. International Trade Commission: Suprema, Inc. V. International Trade Commission

By Davis, Matthew | Missouri Law Review, Summer 2016 | Go to article overview

The Scope of [Section] 337 Post-Suprema, Inc. V. International Trade Commission: Suprema, Inc. V. International Trade Commission


Davis, Matthew, Missouri Law Review


I. INTRODUCATION

Imagine that a statute prohibits the distribution of murder weapons. Now, suppose that Gang A ("A") sends Gang B ("B") a shipment of freshly assembled, unused guns, intending to induce B to commit murders. At the moment B receives the shipment, are those guns murder weapons? If not, would you answer differently if A had already shipped B thousands of guns, all of which B ultimately used to commit murder? If not, would your answer change if law enforcement could intervene only after B commits murder?

The Federal Circuit recently grappled with similar questions in a patent law context. In Suprema, Inc. v. International Trade Commission, (1) the court was concerned with 19 U.S.C. [section] 1337 ("[section] 337"), a provision of the Tariff Act of 1930 which proscribes the importation of "articles that infringe" a patent. (2) At issue was whether goods that did not infringe a patent in their own right could be considered "articles that infringe" based on the importer's intent to use those goods to induce infringement of a patented method. (3) One might naturally answer no. Much like a gun distributed with intent to induce murder is not yet a murder weapon at the moment of its distribution, an article imported with intent to induce infringement is not yet an article that infringes at the time of importation. (4) The Federal Circuit, however, concluded otherwise. (5) At oral argument, the court appeared to latch on to the fact that all imported articles were ultimately used to infringe the patent. (6) And through-out its opinion, the court was clearly concerned with the prospect that ruling to the contrary would prevent the International Trade Commission ("ITC") from excluding these articles. (7)

The court began its analysis by examining the ITC's import-excluding construction under the Chevron framework. (8) After deeming the phrase "articles that infringe" ambiguous, the court concluded that the ITC's interpretation was reasonable and authorized the agency to exclude non-infringing imports that may or may not be used to induce infringement. (9) Although this broadens the ITC's jurisdiction over patents focused on novel methods of use, the court's attempt to fill a statutory gap may create far more issues. (10)

This Note first sets forth the facts and holding of the Federal Circuit's decision in Suprema. Then, it examines the origins of the ITC, the relationship between [section] 337 and the Patent Act, and the cases that were raised in the majority and dissenting opinions. Next, it details the court's interpretation of [section] 337 under the Chevron framework. Finally, this Note appraises the court's construction, addresses the concerns underlying the decision, and assesses the harmful consequences of extending the ITC's authority to the importation of non-infringing articles intended to induce post-importation infringement.

II. FACTS AND HOLDING

Cross Match Technologies, Inc. ("Cross Match"), a domestic supplier of fingerprint scanners and the intervenor in this action, is the assignee of a patented fingerprint scanning method. (11) Suprema, Inc. ("Suprema"), a Korean manufacturer of fingerprint scanners, and Mentalix, Inc. ("Mentalix"), a domestic importer of Suprema's scanners, are the appellants. (12) Suprema's scanners cannot function until they are loaded with custom-developed software. (13) After Mentalix imports Suprema's scanners, it loads them with its own software and then uses and sells the final products. (14) The ITC, the appellee in this action, is a quasi-judicial federal agency authorized by [section] 337 to investigate the importation of articles that infringe a patent. (15)

In May 2010, Cross Match filed a [section] 337 complaint with the ITC, alleging that Mentalix directly infringed its patent and that Suprema induced that infringement. (16) The ITC concluded that Mentalix directly infringed Cross Match's patent by integrating its software with Suprema's scanners and using the final product within the United States. …

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