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Recent Cases
United States
Court of Appeals for the Federal Circuit
03-1426,-1489
VASTFAME
CAMERA, LTD.,
Appellant,
and
ARGUS INDUSTRIES,
INC.,
Appellant,
v.
INTERNATIONAL
TRADE COMMISSION,
Appellee,
and
FUJI PHOTO
FILM CO., LTD.,
Intervenor.
Joseph
W. Bain, Akerman Senterfitt, of West Palm Beach, Florida, argued for
VastFame Camera, Ltd.
Jean
H. Jackson, Attorney, Office of the General Counsel, U.S. International
Trade Commission, of Washington, DC, argued for appellee. With her on the brief were Lyn M.
Schlitt, General Counsel, and James M. Lyons, Deputy General
Counsel.
Lawrence
Rosenthal, Stroock & Stroock & Lavan LLP, of New York, New
York, argued for intervenor.
With him on the brief were Matthew W. Siegal, Lisa A.
Jakob, Angie M. Hankins and Howard D. Shatz. Of counsel were Will E. Leonard
and Michael L. Doane, Adduci, Mastriani & Schaumberg, L.L.P., of
Washington, DC.
Appealed from: United States International
Trade Commission
United States Court of Appeals for the Federal Circuit
03-1426, -1489
VASTFAME CAMERA, LTD.,
Appellant,
and
ARGUS INDUSTRIES, INC.,
Appellant,
v.
INTERNATIONAL TRADE
COMMISSION,
Appellee,
and
FUJI PHOTO FILM CO., LTD.,
Intervenor.
_____________________________
DECIDED:
October 7, 2004
_____________________________
Before CLEVENGER, BRYSON,
and LINN, Circuit Judges.
LINN, Circuit Judge.
This
appeal is one of two related appeals from a decision of the International
Trade Commission (“Commission”) involving
“single-use” or “disposable” 35 mm film cameras,
more formally known as “lens-fitted film packages”
(“LFFP”). VastFame
Camera, Ltd. (“VastFame”) appeals from the Commission’s
determination that importation of VastFame’s LFFPs violates a
pre-existing general exclusion order.
In re Certain Lens-Fitted Film Packages, Inv. No. 337-TA-406
(Int’l Trade Comm’n May 2, 2002) (“Initial
Determination”).
Because the Commission’s decision refusing to allow VastFame
to present its invalidity defense was contrary to 19 U.S.C.
§ 1337(c), we vacate the Commission’s infringement
determination with respect to VastFame and remand for further proceedings
consistent with this opinion.
BACKGROUND
This
proceeding arises out of the Commission’s investigation, entitled In
re Certain Lens-Fitted Film Packages, which resulted in the issuance of
a general exclusion order on June 9, 1999. Inv. No. 337-TA-406 (Int’l Trade
Comm’n June 9, 1999) (“Initial Investigation”). The Initial Investigation involved
newly made and refurbished LFFPs.
The Initial Investigation
also involved numerous Fuji Photo Film Co., Ltd. (“Fuji”)
patents, including U.S. Patent No. 4,884,087 (“the ’087
patent”). At least one
party in the Initial Investigation raised an invalidity defense with
respect to the ’087 patent, but the defense was abandoned before any
judgment on the merits.
VastFame
was not a party to the Initial Investigation, and its VN99 and VN991
cameras were not at issue in that investigation. Although VastFame was not a named
respondent in the Initial Investigation, it knew that the proceedings were
taking place. VastFame was
notified of the proceedings in a March 25, 1998 letter from Fuji. The letter informed VastFame that it
had been identified as a potential respondent, offered to supply VastFame
with a copy of the supplemented complaint, and advised VastFame that
whether or not it joined, it would be bound by the decision. VastFame refused to join the
proceedings.
After
the general exclusion order issued, VastFame obtained a ruling from the
U.S. Customs Service
(“Customs”) that the VN99 and VN991 cameras did not violate the
general exclusion order. Lens-Fitted
Film Packages, Pub. No. 468780, ITC Inv. No. 337-TA-406 (Customs Serv.
Mar. 27, 2000). Customs only
considered one of the fifteen patents upon which the general exclusion
order was based. Nevertheless,
having concluded that VastFame’s LFFPs did not violate the general
exclusion order, Customs allowed the importation of VastFame’s VN99
and VN991 cameras beginning in early 2000.
In June
2001, Fuji filed a complaint with the Commission requesting enforcement and
advisory proceedings to determine whether VastFame and others had violated
the general exclusion order. In
those proceedings, VastFame pled as a defense that claim 15 of the
’087 patent was invalid under 35 U.S.C. §§ 102 and
103(a) in view of certain prior art references. Vastfame fully briefed the invalidity
defense and was prepared to put on its case at the trial, but the
Administrative Law Judge (“ALJ”) refused to consider
invalidity, ruling that the defense could not be raised in the enforcement
proceeding. Initial
Determination, slip op. at 64 n.33. The ALJ explained his position at a
pretrial conference. At that
conference, he advised the parties that the Commission’s order
directing the ALJ to conduct the proceedings did not permit him to
entertain a validity challenge to the patents underlying the general
exclusion order. The ALJ
expressed the view that the Commission’s order limited him to
determining only whether the importation of the enforcement
respondents’ cameras violated the general exclusion order.
In
February 2002, the ALJ conducted an evidentiary hearing on the issues
raised in Fuji’s complaint.
On May 2, 2002, the ALJ concluded that the VN99 and VN991 cameras
infringed only one claim asserted by Fuji, namely, claim 15 of the ’087
patent. Initial
Determination. Based on the
finding of infringement, the ALJ held that the VN99 and VN991 cameras were
in violation of the general exclusion order and could no longer be
imported. Because Fuji’s complaint sought
both enforcement and advisory proceedings, the ALJ simultaneously issued
separate opinions in the form of an initial determination on enforcement
and an advisory opinion regarding violation of the general exclusion
order. See In re
Certain Lens-Fitted Film Packages, Inv. No. 337-TA-406 (Int’l
Trade Comm’n May 2, 2002)
(advisory opinion).
Upon
entry of the ALJ’s enforcement initial determination, VastFame
petitioned the Commission to remand the case to the ALJ for consideration
of the previously excluded invalidity defense. The Commission declined to review
the ALJ’s decision on this issue leaving the decision as the final
determination of the Commission.
In re Certain Lens-Fitted Film Packages, Inv. No. 337-TA-406
(Int’l Trade Comm’n Aug. 7, 2002). On May 15, 2003, the Commission
finalized its proceedings. In
re Certain Lens-Fitted Film Packages, Inv. No. 337-TA-406 (Int’l
Trade Comm’n May 15, 2003).
VastFame
timely appealed to this court.
We have jurisdiction under 28 U.S.C. § 1295(a)(6).
DISCUSSION
A. Standard
of Review
As
the agency charged with the administration of § 1337, the
Commission is entitled to appropriate deference to its interpretation of
the statute. See United
States v. Mead Corp., 533 U.S. 218, 227 (2001); Chevron U.S.A. Inc.
v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984); Enercon GmbH v. Int’l Trade Comm’n, 151 F.3d 1376, 1381 (Fed. Cir. 1998).
Under Chevron, we must first look to “whether Congress
has directly spoken to the precise question at issue.” 467 U.S. at 842. As the Supreme Court explained,
“If a court, employing traditional tools of statutory construction,
ascertains that Congress had an intention on the precise question at issue,
that intention is the law and must be given effect.” Id. at 843 n.9. However, “if the statute is
silent or ambiguous with respect to the specific issue, the question for
the court is whether the agency’s answer is based on a permissible
construction of the statute.”
Id. at 843. In
the latter case, this court will “uphold the [Commission’s] interpretation of [19 U.S.C.
§ 1337] if it is reasonable in light of the language, policies
and legislative history of the statute.” Enercon, 151 F.3d at 1381; see
also San Huan New Materials High Tech, Inc. v. Int’l Trade
Comm’n, 161 F.3d 1347, 1351 (Fed. Cir. 1998) (quoting Enercon,
151 F.3d at 1381).
B. Statutory
Basis of the Enforcement Proceeding
As a
threshold matter, the parties disagree as to the statutory basis of the
enforcement proceeding before the Commission. This is an issue we must decide
before we can determine if the Commission erred in not providing VastFame
an opportunity to present its invalidity defense. VastFame argues that the enforcement
proceeding, which was expressly conducted under 19 C.F.R.
§ 210.75(b), constituted an investigation under
§ 1337(b) because that is the only provision that authorizes the
type of inquiry engaged in by the Commission in this case. The Commission argues that
§ 1337 provides the Commission with general authority to enforce
its own exclusion orders. It
argues that multiple provisions in § 1337 indicate that Congress
intended for the Commission to have a role in enforcing its own
orders.
Neither
party cites express statutory authority for enforcement proceedings, and we
have found none. Because the
statute is silent with respect to the Commission’s authority specifically
to conduct enforcement proceedings, the Commission’s interpretation
of § 1337 may be entitled to deference “if it is reasonable
in light of the language, policies and legislative history of the
statute.” Enercon,
151 F.3d at 1381.
The
Commission is a creature of statute.
Sealed Air Corp. v. U.S. Int’l Trade Comm’n, 645
F.2d 976, 987 (CCPA 1981).
Thus, it must find authority for its actions in its enabling
statute. See Young
Eng’rs, Inc. v. U.S. Int’l Trade Comm’n, 721 F.2d
1305, 1311-12 (Fed. Cir. 1983) (“5 C.F.R. § 211.57 cannot, and
does not, provide greater authority than the statute.”). The Commission cites 19 U.S.C.
§ 1335, which gives the Commission authority to “adopt such
reasonable procedures and rules and regulations as it deems necessary to
carry out its functions and duties.” However, this provision does nothing
more than provide the Commission with authority to promulgate rules. It does not give the Commission the
substantive right to go beyond the express powers provided in § 1337. Similarly, the Commission cites Rule
210.75(b), under which the enforcement proceeding was conducted. However, the Rule itself cannot
provide the needed statutory authority. See Young Eng’rs,
721 F.2d at 1312. The
Commission also cites § 1337(f); however, that section concerns
only cease and desist orders and cannot provide the authority for Rule
210.75(b), at least to the extent that the rule relates to the enforcement
of a general exclusion order. As
VastFame points out, a cease and desist order was not issued against it in
this case.
The
Commission also cites § 1337(k)(1), which provides that exclusion
orders shall remain in effect until the Commission determines otherwise;
and § 1337(k)(2), which provides that a party previously found in
violation of § 1337 may petition for a change of an exclusion
order. Section 1337(k)(1) says
nothing about the Commission’s authority to conduct enforcement
proceedings. Moreover, it was
Fuji, not the Commission, that initiated the present proceedings when it
filed its complaint. Section
1337(k)(2) is inapplicable because VastFame had not “previously been
found by the Commission to be in violation of” § 1337. 19 U.S.C. § 1337(k)(2)
(2000). And that would be true
even if VastFame had requested the proceedings. Finally, the Commission cites
§ 1337(i), which provides that the Commission may order the
seizure of goods previously adjudged to be in violation of § 1337
and previously denied entry.
But the Commission does not argue that any of these statutory provisions,
including § 1337(i), expressly authorizes the enforcement
proceeding conducted in this case.
The Commission uses § 1337(i) to buttress its argument
made with respect to each of these statutory provisions that the authority
to promulgate Rule 210.75(b) emanates from the penumbra of
§ 1337. We cannot
agree with the Commission that, if no specific statutory authority exists,
the Commission has the inherent authority to conduct enforcement proceedings. Such a view is not reasonable in
light of the express powers provided in § 1337 and the fact that
the Commission is a creature of statute. Sealed Air Corp., 645 F.2d at
987. Because the
Commission’s proffered interpretation of the statute is unreasonable,
we reject it.
While no
statutory provision of § 1337 expressly refers to enforcement
proceedings, § 1337(b) gives the Commission general authority to
investigate violations of the statute.
Section 1337(b)(1) provides, “The Commission shall investigate
any alleged violation of this section on complaint under oath or upon its
initiative.” Section
1337(b), by its language, is not limited to initial complaints and
authorizes the Commission to conduct proceedings, including proceedings for
the enforcement of general exclusion orders, to “investigate any
alleged violation of this section on complaint under oath.” In this case, the Commission began
its investigation as a result of Fuji’s complaint. Initial Determination, slip
op. at 1. The statute further
provides that “the Commission shall publish notice thereof in the
Federal Register.” 19
U.S.C. § 1337(b)(1) (2000).
Consistent with this requirement, the Commission, in this case,
published notice of its investigation in the Federal Register. In re Certain Lens-Fitted Film
Packages, 66 Fed. Reg. 40,721 (Int’l Trade Comm’n Aug. 3,
2001) (notice of investigation).
Although
the Commission seeks to avoid basing its enforcement proceeding on
§ 1337(b), we hold that the Commission has authority to conduct
proceedings to enforce general exclusion orders, and that its authority to
conduct such proceedings arises under and is subject to the provisions of
§ 1337(b).
C. “All
Cases”
Having
determined that the Commission’s authority to conduct an enforcement
proceeding is found generally in § 1337(b), we next consider
whether the Commission violated § 1337 in not allowing VastFame
to present its invalidity defense.
The language of § 1337(b)(1) states: “The Commission shall investigate
any alleged violation of this section on complaint under oath or upon its
initiative.” 19 U.S.C.
§ 1337(b)(1) (2000) (emphasis added). Investigations are governed
by § 1337(c), which states:
The
Commission shall determine, with respect to each investigation conducted by
it under this section, whether or not there is a violation of this
section . . . . Each determination under
subsection (d) or (e) of this section shall be made on the record after
notice and opportunity for a hearing in conformity with the provisions of
subchapter II of chapter 5 of title 5.
All legal and equitable defenses may be presented in all
cases.
Id. § 1337(c) (emphases added).
On its
face, the statute appears to require the Commission to allow the
presentation of all defenses in its investigations. The Commission contends, however,
that the nature of a general exclusion order and the considerable burden in
establishing the need for such an order support the Commission’s view
that general exclusion orders may not be collaterally attacked. The Commission argues that
§ 1337(d)(2) is a codification of the Commission’s
balancing of the burden on domestic patentees of repeated litigation and
the effects on legitimate foreign trade of erroneous determinations as laid
down in Certain Airless Paint Spray Pumps and Components Thereof,
USITC Pub. No. 1199, Inv. No. 337-TA-90 (Nov. 1981). Section 1337(d)(2), however, only
addresses the criteria for issuance of general exclusion orders. It does not address whether general
exclusion orders may be subject to collateral attack. Section 1337(d)(2), then, provides
no support for the Commission’s position. Moreover, Congress’s intent in
adding § 1337(d)(2) was to comply with its obligations under the
General Agreement on Tariffs and Trade, not to adopt the Commission’s
policy objectives as announced in Certain Airless Paint Spray Pumps. See S. Rep. No. 103-412, at
120 (1994); H.R. Rep. No. 103-826, at 140-42 (1994) (“The amendments
are necessary to ensure that U.S. procedures for dealing with alleged
infringements by imported products comport with GATT 1994 ‘national
treatment’ rules, while providing for the effective enforcement of
intellectual property rights at the border.”).
The
Commission argues that general exclusion orders are like district court
injunctions in that they must be obeyed until they are modified, reversed,
or vacated. Thus, in the
Commission’s view, a general exclusion order, like a district court
injunction, should not be subject to collateral attack. However, a general exclusion order
is not like a district court injunction with respect to the parties
affected. A general exclusion
order broadly prohibits entry of articles that infringe the relevant claims
of a listed patent without regard to whether the persons importing such
articles were parties to, or were related to parties to, the investigation
that led to issuance of the general exclusion order. See 19 U.S.C.
§ 1337(d)(2) (2000) (“The authority of the Commission to
order an exclusion from entry of articles shall be limited to persons
determined by the Commission to be violating this section unless the
Commission determines that . . . .”); Hyundai
Elecs. Indus. Co. v. U.S. Int’l Trade Comm’n, 899 F.2d
1204, 1210 (Fed. Cir. 1990) (stating that “in an appropriate case the
Commission can impose a general exclusion order that binds parties and
nonparties alike and effectively shifts to would-be importers of
potentially infringing articles, as a condition of entry, the burden of
establishing noninfringement”).
By contrast, district court injunctions are generally limited to the
parties entering appearances before the court or those aiding and abetting
or acting in concert or participation with a party before the court. Additive Controls &
Measurement Sys., Inc. v. Flowdata, Inc., 96 F.3d 1390, 1394 (Fed. Cir.
1996) (“Courts do not write legislation for members of the public at large;
they frame decrees and judgments binding on the parties before
them.”). Because of the differing nature of
general exclusion orders and district court injunctions, the justification
for the prohibition against collateral challenges to injunctions is not
directly applicable to general exclusion orders. Thus, the Commission’s analogy
to district court injunctions is inapposite and unhelpful.
Additionally,
the Commission cites Multi-Level Touch Control Lighting Switches,
Inv. No. 337-TA-225 (Int’l Trade Comm’n July 16, 1987), as
evidence of its long standing policy of not hearing challenges to the
validity of a patent underlying a general exclusion order in enforcement or
advisory proceedings. It sets
forth three public policy arguments to support this position: (1) the difficulty in administering
the statute if general exclusion orders are subject to repeated challenges;
(2) the necessity of preserving the original complainant’s remedy
once it has been issued; and (3) the public interest in avoiding
uncertainty in the market place.
One can argue that all of these policies would be similarly served
by preventing subsequent accused infringers in district courts from
challenging the validity of a patent that had been previously adjudicated
to be not invalid. However,
that is not the law. These
policies do not justify the Commission’s interpretation in the
absence of a showing that the statute may be fairly read the way the
Commission interprets it. To
the contrary, the intent of Congress with respect to this issue is quite
clear.
Nevertheless,
the Commission argues that the “all cases” language of
§ 1337(c) only applies to original investigations, not advisory
and enforcement proceedings.
The Commission argues that the following language of
§ 1337(c) indicates that the statute only provides for
presentation of all defenses in proceedings that lead to determinations
under § 1337(d) or (e):
The Commission shall determine, with respect to
each investigation conducted by it under this section, whether or not there
is a violation of this section . . . . Each
determination under subsection (d) or (e) of this section shall be made on
the record after notice and opportunity for a hearing in conformity with
the provisions of subchapter II of chapter 5 of title 5. All legal and equitable defenses may
be presented in all cases.
19 U.S.C.
§ 1337(c) (2000).
Because subsections (d) and (e) both relate to the issuance of
exclusion orders, the Commission’s interpretation would require the
Commission to first determine whether a complainant was likely to prevail
before deciding whether all defenses may be presented. Moreover, the second sentence quoted
above specifically refers to determinations “under subsection (d) or
(e),” whereas the “all defenses” rule applies to
“all cases.” If
Congress had intended the “all defenses” provision to only
apply to proceedings that lead to determinations under subsections (d) and
(e), or even to original proceedings, it could have easily said so. The Commission’s proffered
interpretation contravenes the clear language of the statute.
VastFame
is correct that the “all defenses” provision at least applies
to investigations under § 1337(b). The opening sentence of
§ 1337(c) plainly indicates that investigations under
§ 1337(b) are governed by § 1337(c). No other language in
§ 1337(c) modifies the broad reference to “all
cases.” Thus, we hold
that the phrase “all cases” clearly encompasses investigations
under § 1337(b). The
necessary result, then, is that participants in a proceeding under
§ 1337(b) must be permitted to raise all defenses.
The
Commission argues that an interpretation of § 1337(c) that makes
every Commission proceeding subject to the “all defenses” rule
is inconsistent with § 1337(i). Section 1337(i) provides authority
for the Commission to issue an order requiring articles imported in
violation of § 1337 to be seized and forfeited to the United
States if the article was previously the subject of an attempted importation
that was denied by reason of an order issued under subsection (d) and upon
such denial the party seeking to import was informed of the exclusion order
and that any further attempts to import such articles would result in
seizure and forfeiture. The
Commission’s argument misses the mark, however, because VastFame has
not asked us to hold that the “all defenses” provision applies
to all proceedings in the Commission.
VastFame argues that the “all defenses” provision
applies to § 1337(b) at a minimum. Thus, whether the “all
defenses” provision applies to § 1337(i) is not before
us. We hold only that the
phrase “all cases” encompasses investigations under
§ 1337(b). We need
not and do not decide what other proceedings may fall within the scope of
“all cases.”
D. Due
Process
Because
we hold that the Commission erred by not allowing VastFame to present its
invalidity defense based on the clear language of § 1337(c), we
do not reach the issue of whether VastFame’s due process rights were
violated in this case.
E. VastFame’s
Invalidity Defense
As an
alternative argument, VastFame asks this court not merely to vacate but to
reverse the Commission’s final determination if we find, without
further need of evidence, that claim 15 of the ’087 patent is invalid. The Commission declined to entertain
VastFame’s invalidity defense; it has not ruled on the merits of this
defense. In Beloit Corp. v.
Valmet Oy, 742 F.2d 1421, 1423 (Fed. Cir. 1984), this court held that
it “does not sit to review what the Commission has not
decided.” Accordingly,
the court will not consider the merits of the validity defense that was
neither heard nor decided by the Commission. Instead, having determined that the
Commission erred in excluding the validity challenge, we remand the case to
the Commission for consideration of VastFame’s invalidity defense in
the first instance.
CONCLUSION
Because
the Commission’s decision precluding VastFame from raising its
invalidity defense was not reasonable or supported by the language, policies,
and legislative history of § 1337, we vacate the
Commission’s enforcement decision and remand for further proceedings
consistent with this opinion.
VACATED AND REMANDED
COSTS
No costs.
United States Court of Appeals for the Federal Circuit
02-1222, -1291
ALLOC, INC.,
BERRY FINANCE N.V., and VALINGE ALUMINIUM, AB,
Appellants,
v.
INTERNATIONAL
TRADE COMMISSION,
Appellee,
and
PERGO, INC.,
and
ROYSOL,
and
AKZENTA PANEELE +
PROFILE GmbH,
and
UNILIN DÉCOR N.V., BHK OF AMERICA, and
MEISTER-LEISTEN SCHULTE, GmbH,
Intervenors.
Opinion for the court filed by Circuit Judge
RADER. Dissenting opinion filed
by Circuit Judge SCHALL.
RADER, Circuit Judge.
In its Final Determination on Investigation No. 337-TA-443
under 19 U.S.C. § 1337 (section 337), the United States
International Trade Commission (Commission) found no infringement of patent
claims covering flooring products and methods of joining flooring products. In the Matter of Certain Flooring
Prods., Inv. No. 337-TA-443, Notice of Final Initial Determination
(Nov. 2, 2001) (Initial Determination); In the Matter of Certain
Flooring Prods., Inv. No. 337-TA-443, Notice of Final Determination
(Mar. 22, 2002) (Final Determination). Absent patent infringement,
the Commission found no domestic injury under section 337 by the imported
flooring products. Because the
domestic producers, Alloc, Inc., Berry Finance N.V., and Valinge Aluminum
AB (collectively, Alloc), cannot prove infringement of the properly
construed claims, this court affirms.
I.
Alloc filed a complaint with the Commission alleging
the importation and sale of the accused flooring materials violated section
337. To show a violation of
section 337(a)(1)(B) or section 337(a)(2), a complainant can prove three
elements: (1) the importation
of goods into the United States or sales of imported goods within the
United States; (2) infringement by those goods or sales of a valid and
enforceable United States patent; and (3) an industry in the United States
marketing the patented articles.
19 U.S.C. §§ 1337(a)(1)(B) & 1337(a)(2)
(2000).
Alloc owns the rights to U.S. Patent Nos. 5,860,267
(the ’267 patent),
6,023,907 (the ’907 patent), and 6,182,410 (the ’410 patent),
which claim systems and methods of joining floor panels. Alloc alleged violation of section
337 by reason of infringement of these patents’ claims. The asserted patents share the
identical specification and all claim priority from the same Patent
Cooperation Treaty (PCT) application, filed April 29, 1994, and a
continuation of this PCT application, U.S. Application No. 08/436,224,
filed May 17, 1995, now issued U.S. Patent No. 5,706,621.
Alloc asserted that Intervenors Pergo, Inc. (Pergo),
Roysol, Akzenta Paneele + Profile, GmbH (Akzenta), Unilin N.V. (Unilin),
and Meister-Leisten Schulte, GmbH (Meister) all imported flooring products
that infringe claims in the ’267, ’907, and ’410 patents.
With the exception of Roysol, the Intervenors admitted importation of the accused
flooring products, but denied infringing the asserted patents. By order dated July 10, 2001, the
administrative judge made an initial determination, which found that Alloc
had shown the existence of a domestic industry marketing the patented
products – the third requirement under section 337. The administrative judge convened an
evidentiary hearing on patent infringement.
Claim 19 of the ’267 patent, claim 1 of the
’907 patent, and claim 1 of the ’410 patent are representative
of the asserted claims from each patent and state (emphases added):
Claim 19 of the ’267 patent
A method for laying and
mechanically joining rectangular building panels in parallel rows, the
method comprising the steps of:
a) placing
a new one of the panels adjacent to a long edge of a previously laid first
one of the panels in a first row and to a short edge of a previously laid
second one of the panels in an adjacent second row, such that the new one
of the panels is in the second row, while holding the new one of the panels
at an angle relative to a principal plane of the first panel, such that the
new one of the panels is spaced from its final longitudinal position
relative to said second panel and such that a long edge of the new panel is
provided with a locking groove which is placed upon and in contact with a
locking strip at the adjacent long edge of the first panel;
b) subsequently
angling down the new one of the panels so as to accommodate a locking
element of the strip of the first panel in the locking groove of the
new panel, whereby the new panel and the first panel are mechanically
connected with each other in a second direction with respect to the thus
connected long edges, wherein the long edges, in the angled down position
of the new panel, are in engagement with each other and thereby
mechanically locked together in a first direction also; and
c) displacing
the new one of the panels in its longitudinal direction relative to the
first panel towards a final longitudinal position until a locking
element of one of the short edges of the new one of the panels and the
second panel snaps up into a locking groove of the other one of the short
edges, whereby the new one of the panels and the second panel are
mechanically connected with each other in both in the first direction and
in the second direction with respect to the thus connected short edges.
Claim 1 of the ’907 patent
A method of laying and
mechanically joining floor panels in parallel rows, wherein relative
positions of the panels during the method can be defined as including first
and second mutual positions, a first mutual position in which (i) the two
panels are held in an angled position relative to each other and (ii) upper
portions of adjacent edges of the two panels are in mutual contact, and a
second mutual position in which the two panels are (i) located in a common
plane, (ii) mechanically locked to each other in a first direction that is
at right angles to the common plane, (iii) mechanically locked to each
other in a second direction, that is at right angles to said first
direction and to the adjacent
joint edges, as a result of a first locking member disposed
at one of the adjacent edges being connected to a second locking member
disposed at the other one of the adjacent edges, and (iv) being
displaceable in relation to each other in the direction of the adjacent
joint edges, wherein said method comprises the steps of:
a) bringing
a new one of the panels into an intermediary position where (i) a
previously laid first one of the panels is located in a first row, (ii) a
second one of the panels is located in a second row and is in said first
mutual position in relation to the first panel, and (iii) the new panel is
located in the second row and is in said second mutual position in relation
to the second panel and is in a position relative to the first panel such
that a mutual distance is present between the upper portions of the
adjacent joint edges of the new panel and the first panel;
b) while
maintaining said second mutual position between the new panel and the second
panel, displacing the new panel relative to the second panel into said
first mutual position in relation to the first panel; and
c) angling
the new panel and the second panel together into said second mutual
position in relation to the first panel.
Claim 1 of the ’410
patent
An edge lock for use in a flooring system having a plurality of
floor panels, the edge lock for mechanically and releasably locking
together adjacent edges of pairs of adjacent floor panels during assembly
of the flooring system and when said adjacent floor panels are laying flat
on a subfloor with upper corner portions of said adjacent edges being
mutually spaced apart, said edge lock comprising:
locking means for
forming a first mechanical connection for locking said adjacent edges to
each other in a vertical direction, and for forming a second mechanical
connection for locking said adjacent
edges to each other in a horizontal direction at right angles to
said edges, said locking means including:
(i)
a locking groove extending parallel to and spaced
from a first one of the adjacent edges of one of the adjacent floor panels
and being open at a rear side of said one adjacent floor panel, and
(ii)
a flexible and resilient locking strip integrated
with another of the adjacent floor panels, said locking strip extending
throughout substantially an entire length of an edge of the another
adjacent floor panel, said locking strip being provided with a locking
element projecting from the locking strip,
said locking
means being constructed so as to operate as a one-way
snap lock in said
horizontal direction during the assembly of said flooring system when
displacing said adjacent edges towards each other by resiliently urging the
flexible locking strip downwards until the upper portions of said adjacent
edges have been brought into complete engagement with each other and the
locking element thereby snaps into the locking groove to prevent drifting
apart of said adjacent edges, and
said locking means also
being constructed so as to enable said
adjacent panels, while they
are mechanically connected to each other by said first and second
mechanical connections, to be turned in relation to each other about
said upper corner portions of their locked-together edges in an angular
direction so as to move the locking element out of the locking groove in
order to unlock said one-way snap lock.
After considering the specification, prosecution
history, and other relevant evidence, the administrative judge construed
the claims to require “play” or a space between a locking
groove on a first panel and the locking element of a panel adjacent to the
first panel. The administrative
judge construed the claim terms “locking means,” “locking
element,” and “locking member” in view of 35 U.S.C.
§ 112, ¶ 6 to have structures requiring play. The administrative judge also
construed the claims independently of § 112, ¶ 6 and
arrived at essentially the same claim construction. In view of this construction, the
administrative judge found no literal infringement by the imported products
because he found that their locking systems did not include play. Without infringement, the
administrative judge found that Alloc did not meet the domestic injury
requirement of section 337.
Therefore, the administrative judge absolved the intervenors of any
violation of section 337 on November 2, 2001.
II.
Turning to the Commission’s finding that
the claims include a “play” limitation, none of the asserted
patent claims recites the term play. Even so, the claims recite floor
system features, which are emphasized in the claim language above, in which
play is necessarily present.
These features, and their associated claim terms, relate to
“displacement” and “disassembly.”
The ’907 specification describes
“the invention” under the heading “Technical Problems and
Objects of the Invention,” as “provid[ing] a system for making
a joint along adjacent joint edges of two building panels, especially floor
panels . . . said system being characterized in that
. . . the panels, when joined together, can occupy a relative
position in said second direction where a play exists between the
locking groove and a locking surface on the locking element that is facing
the joint edges and is operative in said second mechanical
connection.” ’907
patent, col. 3, ll. 59-61; col. 4, ll. 6, 15-19 (emphasis added). Notably, the “objects of the
invention are achieved by means of a panel‑joining system having the
features recited in the appended claims.” ’907 patent, col. 3,
ll. 56-58. The ’907
specification repeats this point:
“The above and other features and advantages of the invention
will appear from the appended claims and the following description of
embodiments of the invention.”
’907 patent, col. 6, ll. 15-17. Thus, the specification teaches that
the invention as a whole, not merely a preferred embodiment, provides for
play in the positioning of floor panels.
The specification also teaches that play
between components of the locking joint permits displacement, i.e.,
allows connected panels to slide relative to one another. ’907 patent, Figure 1. Thus, the play in the joint enables
displacement of floor panels to permit assembly of the panels in accordance
with the installation method in Alloc’s patents. According to the description of
Figure 1, “[w]hen the panels 1 and 2 are joined together, they can
however occupy such a relative position in the direction D2 that there is a
small play D
between the locking surface 10 and the locking groove 14. This mechanical connection in the
direction D2 allows mutual displacement of the panels 1, 2 in the direction
of the joint, which considerably facilitates the laying and enables joining
together the short sides by snap action.” ’907 patent, col. 7, ll.
38-45. Thus, displacement,
facilitated by play, permits assembly via snap action.
According to the ’907 specification, play
in the joint also permits “disassembly and reassembly of a floor
previously laid without causing damage to the panels.” ’907 patent, col. 3, ll.
48-50. In addition to
minimizing the risk of damage to the panels, the system of the invention
“can be assembled and disassembled much faster than in present‑day
systems, and any damaged or worn‑out panels can be replaced by taking
up and re‑laying parts of the floor.” ’907 patent, col. 4, ll.
54-57. The patent teaches that
the preferred method of disassembly is to rotate the panels at an angle to
one another without contact between their components. This method achieves disassembly
“even if the aforementioned play between the locking groove and the
locking surface is not greater than 0.2 mm.” ’907 patent, col. 5, ll.
28-29. In addition to a first
mechanical connection, the specification states that “the
invention” provides for a second mechanical connection wherein
“a play exists between the locking groove and a locking surface on
the locking element that is facing the joint edges and is operative in said
second mechanical connection.”
’907 patent, col. 4, ll. 16-19. The second mechanical connection
“is so conceived as to allow the locking element to leave the locking
groove if the groove panel is turned about its joint edge angularly away
from the strip.”
’907 patent, col. 4, ll. 23-26. Thus, the second mechanical
connection, in which play exists, permits release of the locking element
upon turning the groove panel away from the strip projecting from the
groove panel, essentially unlocking the snap lock assembly.
The ’907 specification further criticizes
prior art floor systems without play.
’907 patent, col. 3, ll. 1-21. The specification teaches that
displacement of prior art panels is a “complicated operation”
in systems having panels “tightly urged against each other,”
meaning displacement is hard to achieve in systems without play. ’907 patent, col. 3, ll.
10-12. Furthermore, disassembly
and reassembly, which play facilitates, is unfeasible with these prior art
systems. As the ’907
specification explains, “it is not possible to disassemble a glued
floor panel once laid, without having to break up the joints. Floor panels that have been taken up
cannot therefore be used again. . . . Nor can damaged or worn-out panels
be replaced without extensive efforts.” ’907 patent, col. 2, ll.
26-32.
Moreover, all the figures and embodiments
disclosed in the asserted patents imply play, or, as in the case of Figure
1b, expressly disclose play.
Indeed, the patents do not show or suggest any systems without
play. Thus, the ’907
family of patents describe only flooring systems and methods of joining
these flooring systems with play between the locking groove and the locking
element.
In so concluding, this court recognizes that it
must interpret the claims in light of the specification, Markman v.
Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) (en
banc), aff’d 517 U.S. 370 (1996), yet avoid
impermissibly importing limitations from the specification. Comark Communications v. Harris
Corp., 156 F.3d 1182, 1186 (Fed. Cir. 1998). That balance turns on how the
specification characterizes the claimed invention. SunRace Roots Enters. Co. v. SRAM
Corp., 336 F.3d 1298, 1305 (Fed. Cir. 2003). In this respect, this court looks to
whether the specification refers to a limitation only as a part of less
than all possible embodiments or whether the specification read as a whole
suggests that the very character of the invention requires the limitation
be a part of every embodiment.
For example, it is impermissible to read the one and only disclosed
embodiment into a claim without other indicia that the patentee so intended
to limit the invention. Teleflex,
Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1327 (Fed. Cir. 2002). On the other hand, where the
specification makes clear at various points that the claimed invention is
narrower than the claim language might imply, it is entirely permissible
and proper to limit the claims.
SciMed Life Sys., Inc. v. Advanced Cardiovascular Sys., Inc.,
242 F.3d 1337, 1345 (Fed. Cir. 2001).
Because the present case is factually similar
to SciMed, this court’s analysis in that case is instructive
here. In SciMed, the
court identified the sole claim construction issue to be “whether the
common specification of the three patents limits the scope of the claims to
catheters with coaxial lumens.”
Id. at 1340. The
patentee argued that the claims should have been construed to include
catheters with not only coaxial but also dual or side‑by‑side
lumens. Id. But this court disagreed, finding:
At various points, the common specification of
the three patents indicates that the claimed invention uses coaxial, rather
than side‑by‑side lumens, i.e., that the guide wire lumen is
contained within the inflation lumen and that the inflation lumen is
annular. Read together, these
portions of the common specification lead to the inescapable conclusion
that the references in the asserted claims to an inflation lumen
“separate from” the guide wire lumen must be understood as
referring to coaxial lumens, and thus that the asserted claims read only on
catheters having coaxial lumens.
Id. at 1342. Here too, the ’907
specification read as a whole leads to the inescapable conclusion that the
claimed invention must include play in every embodiment.
This court’s analysis in SunRace
is similarly instructive, as the present facts are distinguishable. The parties’ dispute centered
on whether the claims included a cam as part of a shift actuator. In that case, the court found that
the specification as a whole did not mandate that the claimed invention
include a particular feature; instead, the court found that the patentee
had clearly contemplated a shift actuator without a cam. SunRace, 336 F.3d at
1304-5. It stated:
“[N]othing in the written description indicates that the invention is
exclusively directed toward cams or suggests that systems employing cams
are outside the scope of the invention. Thus, while it is clear that the
patentee was primarily focused on an embodiment of the invention using a
cam, nothing in the patent limits the claims to that
embodiment.” Id.
at 1305. Here, the ’907
specification indicates that the invention is indeed exclusively directed
toward flooring products including play. Moreover, unlike the patent‑at‑issue
in SunRace, the ’907 specification also distinguished the
prior art on the basis of play.
Id.
Although the specification alone is
sufficiently clear, the prosecution history of this patent family confirms
the description in the specification of each patent, namely, that play is a
key feature of the claimed invention.
The PCT priority application included claims to a “system for
providing a joint along adjacent joint edges . . . of two building
panels,” the system having panels, when joined together, that
“can occupy a relative position in said second direction (D2) where
play (D)
exists.” The
International Preliminary Examination Report (IPER) issued in the PCT
application states that none of the documents cited in the International
Search Report “describe a system where a play exists between the
locking groove (14) and the locking element (8), where the connection
allows mutual displacement of the panels in the direction of the joint
edges and where the connection is so conceived as to allow the locking
element to leave the groove (14) if the groove panel (2) is turned about
its joint edge angularly away from the strip. The device is therefore
novel.” Thus, the IPER
based its conclusion of novelty on the claim’s recitation of play in
the system joint.
During prosecution of the U.S. parent
’621 patent application, the patentee represented to the United
States Patent and Trademark Office (USPTO) that play is “important”
because it enables displacement and disassembly of connected panels. Specifically, in response to a prior
art rejection under 35 U.S.C. § 102(b), the patentee stated:
The claimed “play” of the present invention
is important for two reasons.
One, it enables the panels to slide movably with respect to each
other along the direction of the joint edge, which is specifically claimed
in the penultimate paragraph of claim 1. This movability allows the short
ends of the panels to be placed adjacent each other when installing the
floor. Second, the play further
enables disassembly of the floor when required. . . . Trotter [the prior art] also does
not teach or suggest the feature of the present invention that is defined
in the last claim of claim 1, i.e., that the second mechanical connection
enables the locking element to leave the locking groove if the groove panel
is turned about its joint edge angularly way from the strip.
In response, the USPTO examiner allowed the
claims over the Trotter reference, noting (emphases added):
The
prior art of record fails to teach the use of adjacent joint floor paneling
wherein the floor panels are interconnected by a locking element located
within a groove formed on the underside in such a way so as to allow for displacement
of the panels in a direction toward the joints and to allow for the locking
member to be released from the groove when the panel is rotated
about the joint.
Thus, like in the IPER, the USPTO relied on the
patentee’s statement distinguishing the invention from the prior art
based on the invention’s ability to displace panels (“slide
movably”) and to release adjacent panels by rotation about the
joint. The applicant persuaded
the USPTO that play enables these features. After gaining allowance of these
claims, the patentee added new claims nearly identical to those allowed,
except without the term play.
The applicant did not, however, retract or modify the
representations that secured allowance of the original claims. Instead, the applicant acknowledged:
New
independent claim 22 is substantially the same as independent claim 1
except that it does not define the play that exists between the
locking groove and the locking surface. As such, displacement of the panels
is still facilitated in a direction along the joints which is what is
believed to be meant by the Examiner’s Statement of Reasons for the
indication of allowable subject matter. (Emphasis added.)
As such, the applicant represented to the USPTO
examiner that play facilitated its novel system set forth in the revised
claims. Because the applicant
invoked play to overcome the prior art, which lacked displacement and
disassembly, Alloc cannot now contend that the ’621 patent claims a
flooring system and method for installing that system without play. The applicant expressly disavowed
systems without play during prosecution of the parent ’621
application. See Middleton,
311 F.3d at 1388.
Likewise, the independent claims of the
’907, ’410, and ’267 patents incorporate the same
limitations adopted by the applicant to secure allowance of the parent
’621 patent. Augustine
Med., Inc. v. Gaymar Indus., Inc., 181 F.3d 1291, 1300 (Fed. Cir.
1999) (noting that the prosecution history of a parent patent application
may limit the scope of a later patent application using the same claim
term). The critical features
of the parent ’621 patent claims are also recited in the claims of
its offspring. Each of the
asserted patent claims recite locking members, locking elements, or locking
means that permit displacement of panels or release of panels during
disassembly. Specifically, the
asserted ’907, ’410, and ’267 patent claims require the
displacement of floor panels, or floor panels that are displaceable in
relation to each other.
Moreover, the system claims of the ’410
patent require locking means that unlock adjacent floor panels by turning
the panels in an angular direction to move the locking element out of its
locking groove. To gain
allowance of the parent patent claims over the prior art, the applicant
insisted that play enables displacement and disassembly. Moreover, this feature distinguished
the claimed flooring system over systems without play. All of the asserted child patents
have specifications identical to the parent ’621 specification. Thus, the limitations of the parent,
as dictated by the specification’s disclosure, apply as well to each
of its children. Because play
facilitates displacement and disassembly, as stated in the parent
’621 patent file history, the asserted claims all require that
feature.
The parties disagree as to whether this court
should construe certain features of claims 1-3 of the ’907 patent,
claims 1, 26, 41 and 48 of the ’410 patent, and claims 19, 23, and 39
of the ’267 patent under 35 U.S.C. § 112, ¶ 6 as
means-plus-function limitations.
Claims 1-3 of the ’907 patent recite the terms “first
locking member” and “second locking member.” The claims of the ’410 patent
recite the terms “locking means,” “locking
element,” and “means for mechanically locking.” The claims of the ’267 patent
recite the terms “first locking member,” “second locking
member,” and “locking element.” 35 U.S.C. § 112, ¶ 6
states:
An element in a
claim for a combination may be expressed as a means or step for performing
a specified function without the recital of structure, material or acts in
support thereof, and such claim shall be construed to cover the
corresponding structure, material, or acts described in the specification
and equivalents thereof.
35 U.S.C. § 112, ¶ 6 (2000). While typically considered in light
of apparatus claims, § 112, ¶ 6 is also applicable to steps
in a process claim. O.I.
Corp. v. Takmar Co., 115 F.3d 1576, 1583 (Fed. Cir. 1997).
In this case, the outcome does not hinge on
whether or not the claims are interpreted under 35 U.S.C. § 112,
¶ 6, as the critical factor, play, applies to claims of either
flavor. The applicant
emphasized the criticality of play during prosecution of the parent
’621 application. This
record informs the claims of its children as well. Whether those claims fall under the
§ 112, ¶ 6 regime or not, the patent applicant tethered the
displacement and disassembly features of the claims to the play feature. Alloc cannot now obtain a claim
construction under § 112, ¶ 6 disregarding play.
After construing the claims of the ’907,
’410, and ’267 patents, the Commission compared the claims to
the imported floor systems.
Because the Commission correctly construed the claims to require
play, Alloc relied on its expert, Mr. Limbert, to show play in the imported
flooring systems. Nonetheless,
the administrative judge found that none of the imported products exhibited
play.
With respect to Unilin’s system, the
administrative judge discounted Mr. Limbert’s analysis as flawed due
to his reliance on drawings not depicting Unilin’s product and faulty
mathematical calculations.
Initial Determination, slip op. at 90-92. The administrative judge rejected
Alloc’s arguments regarding play in Pergo’s product because
Alloc’s sole basis for making these arguments was that Pergo’s
product contained the same joint as Unilin’s product. Initial Determination, slip op. at
93. Thus, the
reasons for rejecting Alloc’s assertions against Unilin are equally
applicable to Pergo. Alloc did
not allege that Roysol’s products possessed play. Initial Determination, slip op. at
94.
Alloc argued that manufacturing tolerances may
result in pretension or play in Akzenta’s flooring products. However, the administrative judge
rejected this argument, because the design specifications and quality
control practices of Akzenta prevent the introduction of play during
manufacturing. According to
Akzenta’s expert, Dr. Blair, physical inspection of Akzenta’s
product confirmed the absence of play.
Initial Determination, slip op. at 97.
Thus, the administrative judge carefully
weighed the evidence of record, and found the Intervenor’s arguments
and expert testimony more persuasive than Alloc’s. Based on this evidence, the
administrative judge found no literal infringement of Alloc’s claims
by the imported flooring systems, as each system lacks the requisite
play. This court generally
defers to an agency as fact-finder in assessing the credibility of
witnesses. See Hambsch
v. Dep’t of Treas., 796 F.2d 430, 436 (Fed. Cir. 1986). Because the record supplies
substantial evidence to support the administrative judge’s factual
findings, this court affirms the determination of no literal infringement. See Enercon, 151 F.3d
at 1376.
Alloc contended that at least some of the
Intervenors induced customers to install their imported flooring systems in
manners resulting in infringement of the ’907 and ’267
patents. For example, Alloc
argued that Unilin, Pergo, and Roysol provided installation instructions
that require customers to follow the steps of Alloc’s claimed
methods. Alloc asserts that the
Intervenors specifically intended to induce infringement of the ’907
and ’267 method claims.
Under principles of indirect infringement,
“[w]hoever actively induces infringement of a patent shall be liable
as an infringer.” 35
U.S.C. § 271(b) (2000).
However, a patentee must show that an alleged infringer knowingly
induced another to commit an infringing act to establish induced
infringement under section 271(b).
Manville Sales Corp. v. Paramount Sys., Inc., 917 F.2d 544,
553 (Fed. Cir. 1990); C.R. Bard Inc. v. Advanced Cardiovascular Sys.,
Inc., 911 F.2d 670, 674-75 (Fed. Cir. 1990) (“A
person induces infringement under § 271(b) by actively and
knowingly aiding and abetting another's direct infringement.”). Here, the
administrative judge found no evidence that the Intervenors intended to
induce others to infringe the asserted patents. More importantly, the administrative
judge found no evidence of direct infringement, which is a prerequisite to
indirect infringement. Moba,
B.V. v. Diamond Automation, Inc., 325 F.3d 1306, 1318 (Fed. Cir. 2003)
(“Because
this court upholds the verdict that claim 28 of the '494 patent is not
directly infringed, the trial court correctly determined that FPS does not
indirectly infringe that claim.”); Met-Coil Sys. Corp. v. Korners
Unlimited, Inc., 803 F.2d 684, 687 (Fed. Cir. 1986) ("[T]here
can be no inducement of infringement without direct infringement by some
party."). This
court finds no reason to disturb the administrative judge’s
conclusion on inducement.
Contributory infringement prohibits importation
into the United States of a component or apparatus for use in a patented
process that “has no use except through practice of the
patented method.”
C.R. Bard, 911 F.2d at 674. The statute sets forth contributory
infringement in section 271(c):
Whoever offers to
sell or sells within the United States or imports into the United States a
component of a patented machine, manufacture, combination or composition,
or a material or apparatus for use in practicing a patented process,
constituting a material part of the invention, knowing the same to be
especially made or especially adapted for use in an infringement of such
patent, and not a staple article or commodity of commerce suitable for
substantial noninfringing use, shall be liable as a contributory infringer.
35 U.S.C. § 271(c) (2000). In this case, the administrative
judge found that the imported flooring had substantial noninfringing
uses. The record showed that
the accused flooring products could be installed by methods not claimed in
the ’267 and ’907 patents.
Initial Determination, slip op. at 104-07. For instance, the installation
instructions for Unilin’s floor product are a noninfringing
“snap-snap” method.
Alloc’s expert, Mr. Wennerth, admitted that Pergo’s
installation instructions describe a noninfringing method of installing
Pergo flooring. Akzenta’s
published PCT application also discloses noninfringing methods of
installing its floor products.
After weighing this evidence, the administrative judge found no
basis for contributory infringement.
Initial Determination, slip op. at 107. The record amply supports the administrative
judge‘s determination of noninfringement, and this court finds no
reason to alter the decision of the administrative judge.
A requirement of a patent-based section 337
action is that a domestic industry “relating to the articles
protected by the patent . . . exist[] or [be] in the process of being
established.” 19 U.S.C. § 1337(a)(2). To determine whether an industry
relates to the protected articles (the “technical prong” of the
domestic industry requirement), the Commission examines whether the
industry produces articles covered by the asserted claims. The test for satisfying the
“technical prong” of the industry requirement is essentially
same as that for infringement, i.e., a comparison of domestic products to
the asserted claims. Corning
Glass Works v. United States Int’l Trade Comm’n, 799 F.2d
1559, 1563 (Fed. Cir. 1986).
The administrative judge found that Alloc
satisfied the economic prong of domestic industry. Initial Determination, slip op. at 2. However, based on the claim
construction of the patents at issue, the administrative judge concluded
that Alloc did not practice the patents at issue. The products sold by Alloc in the
relevant United States market are not covered by any of the asserted patent
claims because Alloc sells flooring systems without play. Initial Determination, slip op. at
110-15.
Alloc does not contend on appeal that its
products exhibit play. Instead,
Alloc presents arguments that three of its products marketed in the United
States can be installed using a hammer and tapping block, which eliminates
play. Thus, Alloc makes no
attempt to establish a domestic industry in light of claim construction
requiring play. Alloc
essentially concedes that it cannot show a domestic industry exists under a
claim construction requiring its flooring systems to have play. Therefore, Alloc cannot make out a
section 337 violation in the instant case for lack of the domestic injury
component of the charge.
Additional
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