This past November, a panel of the Federal Circuit held in ClearCorrect Operating, LLC v. International Trade Commission that digital data are not "articles," and thus that section 337 of the U.S. Tariff Act (which renders unlawful the importation of infringing "articles" into the United States, subject to certain conditions) does not confer jurisdiction on the U.S. International Trade Commission (ITC) to issue a cease and desist order directed against the electronic transmission of such data into the United States. (For my post on the original panel opinion, see here.) This morning the court denied a petition for rehearing en banc (order and opinions here). Judge Newman filed a dissenting opinion, arguing inter alia that "Section 337 does not distinguish between infringing goods imported electronically and infringing goods imported on a physical medium," and that the ITC's interpretation of the statute (that articles do include digital data) is entitled to deference under the Chevron doctrine. Chief Judge Prost, the author of the original panel opinion, filed an opinion (joined by Judges O'Malley and Wallach) concurring in the order denying the petition for rehearing and responding to certain points raised in Judge Newman's dissent.
Post a Comment