ClearCorrect Operating, LLC v. International Trade Commission ( 2015 )

United States Court of Appeals
for the Federal Circuit
______________________
CLEARCORRECT OPERATING, LLC,
CLEARCORRECT PAKISTAN (PRIVATE), LTD.,
Appellants
v.
INTERNATIONAL TRADE COMMISSION,
Appellee
ALIGN TECHNOLOGY, INC.,
Intervenor
______________________
2014-1527
______________________
Appeal from the United States International Trade
Commission in Investigation No. 337-TA-833.
______________________
Decided: November 10, 2015
______________________
MICHAEL D. MYERS, McClanahan Myers Espey, LLP¸
Houston, TX, argued for appellants. Also represented by
ROBERT HENRY ESPEY, II; GARY HNATH, PAUL WHITFIELD
HUGHES, Mayer Brown LLP, Washington, DC.
SIDNEY A. ROSENZWEIG, Office of the General Counsel,
United States International Trade Commission, Washing-
ton, DC, argued for appellee. Also represented by WAYNE
W. HERRINGTON, DOMINIC L. BIANCHI.
2 CLEARCORRECT OPERATING, LLC v. ITC
STEPHEN BLAKE KINNAIRD, Paul Hastings LLP, Wash-
ington, DC, argued for intervenor. Also represented by
THOMAS A. COUNTS, IGOR VICTOR TIMOFEYEV.
CHARLES DUAN¸ Public Knowledge, Washington, DC,
for amici curiae Electronic Frontier Foundation, Public
Knowledge.
JOHN THORNE, Kellogg, Huber, Hansen, Todd, Evans
& Figel, PLLC, Washington, DC, for amicus curiae The
Internet Association. Also represented by MATTHEW A.
SELIGMAN; AARON M. PANNER¸ Law Office of Aaron M.
Panner, PLLC, Washington, DC.
JEFFREY A. LAMKEN, MoloLamken LLP, Washington,
DC, for amicus curiae Business Software Alliance.
STEVEN METALITZ, Mitchell, Silberberg & Knupp,
LLP, Washington, DC, for amicus curiae Association of
American Publishers.
JOHN D. HAYNES, Alston & Bird LLP, Atlanta, GA, for
amici curiae Nokia Corporation, Nokia USA, Inc. Also
represented by ADAM DAVID SWAIN¸ BENN C. WILSON,
Washington, DC.
JONATHAN J. ENGLER, Adduci, Mastriani & Schaum-
berg, LLP, Washington, DC, for amici curiae Motion
Picture Association of America, Recording Industry Asso-
ciation of America. Also represented by THOMAS RICHARD
BURNS, JR., TOM M. SCHAUMBERG.
______________________
Before PROST, Chief Judge, NEWMAN and O’MALLEY,
Circuit Judges
Opinion for the court filed by Chief Judge PROST.
CLEARCORRECT OPERATING, LLC v. ITC 3
Concurring opinion filed by Circuit Judge O’MALLEY.
Dissenting opinion filed by Circuit Judge NEWMAN.
PROST, Chief Judge.
The Tariff Act of 1930 provides the International
Trade Commission (“Commission”) with authority to
remedy only those unfair acts that involve the importa-
tion of “articles” as described in 19 U.S.C. § 1337(a).
Here, the Commission concluded that “articles” “should be
construed to include electronic transmission of digital
data. . . .” In re Certain Digital Models, Inv. No. 337-TA-
833 at 55 (Apr. 3, 2014) (“Final Comm’n Op.”). We disa-
gree.
The Commission’s decision to expand the scope of its
jurisdiction to include electronic transmissions of digital
data runs counter to the “unambiguously expressed intent
of Congress.” Chevron, U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 843 (1984). Under step one of
Chevron, “[w]e begin with the text of [the statute].” King
v. Burwell, 135 S. Ct. 2480, 2489 (2015). Here, it is clear
that “articles” means “material things,” whether when
looking to the literal text or when read in context “with a
view to [the term’s] place in the overall statutory scheme.”
Id. We recognize, of course, that electronic transmissions
have some physical properties—for example an electron’s
invariant mass is a known quantity—but commonsense
dictates that there is a fundamental difference between
electronic transmissions and “material things.” Our
analysis is therefore complete. However, even under step
two of Chevron, an analysis of the Commission’s opinion
4 CLEARCORRECT OPERATING, LLC v. ITC
makes clear that it is unreasonable and therefore not
entitled to deference. 1
Accordingly, we reverse and remand the Commis-
sion’s decision and conclude that the Commission does not
have jurisdiction over this case. 2
I. BACKGROUND
The Commission instituted the present investigation
based on a complaint filed by Align Technology, Inc.
(“Align”). Align alleged a violation of 19 U.S.C. § 1337
(“Section 337”) by reason of infringement of various
claims of seven different patents. 3 The respondents to the
1 While this court recently interpreted the phrase
“articles that infringe” in Suprema, Inc. v. International
Trade Commission, that opinion does not control here.
2015 WL 4716604, at *5. In Suprema, we were dealing
with the single issue of whether the respondent violated
19 U.S.C. § 1337 by inducing a direct patent infringement
that did not occur until after a tangible item was import-
ed into the United States. Our opinion turned exclusively
on the term “infringe” as used in 19 U.S.C.
§ 1337(a)(1)(B)(1). Conversely, here we are exclusively
looking to the meaning of the term “articles.” Further-
more, the “articles” in question in Suprema were physical
objects, and thus do not inform the question now before
the court. Indeed the analysis in Suprema supports the
decision here, as discussed infra.
2 As we do not overcome the threshold issue of the
Commission’s jurisdiction, we do not reach the Appellant’s
appeal regarding the Commission’s analysis of estoppel,
contributory infringement, or invalidity. Appellant’s Br.
17-59.
3 U.S. Patent No. 6,217,325 (“’325 patent”); U.S. Pa-
tent No. 6,705,863 (“’863 patent); U.S. Patent No.
CLEARCORRECT OPERATING, LLC v. ITC 5
investigation were ClearCorrect Operating, LLC
(“ClearCorrect US”), and Clear Correct Pakistan (Pri-
vate), Ltd. (“ClearCorrect Pakistan”) (collectively
“ClearCorrect”).
The technology at issue in this case relates to the pro-
duction of orthodontic appliances, also known as aligners.
The aligners in question “are configured to be placed
successively on the patient’s teeth and to incrementally
reposition the teeth from an initial tooth arrangement,
through a plurality of intermediate tooth arrangements,
and to a final tooth arrangement.” ’880 patent (abstract).
ClearCorrect is a producer of these aligners.
ClearCorrect makes its aligners through the following
process. ClearCorrect US scans physical models of the
patient’s teeth and creates a digital recreation of the
patient’s initial tooth arrangement. This digital recrea-
tion is electronically transmitted to ClearCorrect Paki-
stan, where the position of each tooth is manipulated to
create a final tooth position. ClearCorrect Pakistan then
creates digital data models of intermediate tooth posi-
tions. One intermediate tooth position is created for each
incremental aligner. ClearCorrect Pakistan then trans-
mits these digital models electronically to ClearCorrect
US. ClearCorrect US subsequently 3D prints these
digital models into physical models. Then an aligner is
manufactured by thermoplastic molding using the physi-
cal model. Here, the accused “articles” are the transmis-
sion of the “digital models, digital data and treatment
plans, expressed as digital data sets, which are virtual
three-dimensional models of the desired positions of the
6,626,666 (“’666 patent”); U.S. Patent No. 8,070,487 (“’487
patent); U.S. Patent No. 6,471,511 (“’511 patent); U.S.
Patent No. 6,722,880 (“’880 patent”); and U.S. Patent No.
7,134,874 (“’874 patent”).
6 CLEARCORRECT OPERATING, LLC v. ITC
patients’ teeth at various stages of orthodontic treatment”
(“digital models”), from Pakistan to the United States.
Final Comm’n Op. at 17.
The parties and the Commission agreed to divide the
patent claims into four Groups: Group I contains those
claims that relate to methods of forming dental applianc-
es, 4 Group II contains those claims that relate to methods
of producing digital data sets, 5 Group III contains those
claims that relate to a treatment plan based on a series of
digital data sets on a storage medium, 6 and Group IV
contains those claims that relate to methods of producing
dental appliances. 7 The Commission found the Groups I
and II claims8 to be infringed and not invalid. It is these
claims that are at issue in this appeal. The Commission
found the Groups III and IV claims to be either beyond
the scope of the Commission’s jurisdiction or not in-
fringed. The Commission’s ruling concerning Groups III
and IV are at issue in companion case Align Technology,
4 Claims 21 and 30 of the ’325 patent and claim 1 of
the ’880 patent.
5 Claims 31 and 32 of the ’325 patent, claims 1 and
4-8 of the ’863 patent, claims 1, 3, 7, and 9 of the ’666
patent, and claims 1, 3, and 5 of the ’487 patent.
6 Claims 7-9 of the ’487 patent.
7 Claims 1-3, 11, 13-14, 21, 30-35, and 38-39 of the
’325 patent, claims 1 and 3 of the ’880 patent, claim 1 of
the ’511 patent, and claims 1-2, 38-39, 41, and 62 of the
’874 patent.
8 To the extent that Group I and II claims overlap
with Group IV claims, the Commission found that these
claims were infringed and not invalid. Because of the
posture of this appeal, the nature of the overlap is not
relevant to this case and thus will not be discussed.
CLEARCORRECT OPERATING, LLC v. ITC 7
Inc. v. International Trade Commission, No. 2014-1533,
and not at issue in this case.
While the Group I 9 and Group II 10 claims differ, for
purposes of this appeal it is the similarity in Align’s
9 Claim 1 of the ’880 patent is representative of the
Group 1 claims and reads:
A method for making a predetermined series of
dental incremental position adjustment applianc-
es, said method comprising:
a) obtaining a digital data set represent-
ing an initial tooth arrangement;
b) obtaining a repositioned tooth ar-
rangement based on the initial tooth ar-
rangement;
c) obtaining a series of successive digital
data sets representing a series of succes-
sive tooth arrangements; and
d) fabricating a predetermined series of
dental incremental position adjustment
appliances based on the series of succes-
sive digital data sets, wherein said appli-
ances comprise polymeric shells having
cavities shaped to receive and resiliently
reposition teeth, and said appliances cor-
respond to the series of successive tooth
arrangements progressing from the initial
to the repositioned tooth arrangement.
’880 patent col. 22 ll. 13-29.
10 Claim 21 of the ’325 patent is representative of
the Group II claims and reads:
8 CLEARCORRECT OPERATING, LLC v. ITC
allegations of ClearCorrect’s infringement that are rele-
vant—namely, ClearCorrect Pakistan’s electronic trans-
mission of digital models to ClearCorrect US.
The Administrative Law Judge (“ALJ”) conducted an
evidentiary hearing in February 2013, and on May 6,
2013, issued its Initial Determination. The ALJ found
that—but for the claims related to the ’666 patent—
ClearCorrect infringed the Groups I and II patent claims.
In so finding, the ALJ determined that the Commission
had authority to order ClearCorrect to stop electronically
importing digital models into the United States. The ALJ
recommended that the Commission issue a cease and
desist order directed to ClearCorrect to prohibit the
importation of digital models.
In response, both ClearCorrect and Align filed peti-
tions for Commission review. The Commission initiated a
review of the entire Initial Determination and solicited
briefing from the parties and the public. While the public
did not respond to the initial request by the Commission,
the Commission extended its deadline and issued another
A method for fabricating a dental appliance, said
method comprising:
providing a digital data set representing a
modified tooth arrangement for a patient;
controlling a fabrication machine based on
the digital data set to produce a positive
model of the modified tooth arrangement;
and
producing the dental appliance as a nega-
tive of the positive model.
’325 patent col. 17 ll. 7-16.
CLEARCORRECT OPERATING, LLC v. ITC 9
notice to the public. In response to this notice, the Com-
mission received briefing from various nonparties includ-
ing: the Association of American Publishers, Google Inc.,
Andrew Katz, The Motion Picture Association of America,
and Nokia Corp.
On April 3, 2014, the Commission terminated the in-
vestigation finding the Groups I and II patent claims
infringed. Specifically, the Commission found that
ClearCorrect US directly infringed the Group I patents
and ClearCorrect Pakistan contributed to that infringe-
ment. 11 The Commission determined that, because
ClearCorrect US’s infringement occurred in the United
States, it was not a violation of Section 337. The Com-
mission instead exerted its authority over ClearCorrect
Pakistan as a contributory infringer for importing the
data models. Additionally, the Commission found that
ClearCorrect Pakistan practiced the Group II method
claims in Pakistan and found that the importation of the
resulting digital models violated 19 U.S.C.
§ 1337(a)(1)(B)(ii). Finally, the Commission agreed with
the ALJ that the Commission had jurisdictional authority
over electronically imported data under Section 337. The
Commission has stayed its cease and desist order until
this appeal is resolved.
Following the Commission’s decision, this case was
timely appealed to us. We have jurisdiction to review the
Commission’s findings under 28 U.S.C. § 1295(a)(6).
II. DISCUSSION
“Section 337 declares certain activities related to im-
portation to be unlawful trade acts and directs the Com-
mission generally to grant prospective relief if it has
11 Commissioner David S. Johanson dissented in the
Commission’s findings.
10 CLEARCORRECT OPERATING, LLC v. ITC
found an unlawful trade act to have occurred.” Suprema,
Inc., 2015 WL 4716604 at *5. “As a trade statute, the
purpose of Section 337 is to regulate international com-
merce. Section 337 necessarily focuses on commercial
activity related to cross-border movement of goods.” Id.
(citation omitted). Congress established Section 337 to
“curb[] unfair trade practices that involve the entry of
goods into the U.S. market via importation. In sum,
Section 337 is an enforcement statute enacted by Con-
gress to stop at the border the entry of goods, i.e., articles,
that are involved in unfair trade practices.” Id. Section
337(a)(1) reads as follows:
Subject to paragraph (2), the following are unlaw-
ful, and when found by the Commission to exist
shall be dealt with, in addition to any other provi-
sion of law, as provided in this section:
(A) Unfair methods of competition and unfair acts
in the importation of articles (other than articles
provided for in subparagraphs (B), (C), (D), and
(E)) into the United States, or in the sale of such
articles by the owner, importer, or consignee, the
threat or effect of which is—
...
(B) The importation into the United States, the
sale for importation, or the sale within the United
States after importation by the owner, importer,
or consignee, of articles that—
...
(C) The importation into the United States, the
sale for importation, or the sale within the United
States after importation by the owner, importer,
or consignee, of articles that infringe a valid and
enforceable United States trademark registered
under the Trademark Act of 1946 [15 U.S.C. 1051
et seq.].
CLEARCORRECT OPERATING, LLC v. ITC 11
...
(E) The importation into the United States, the
sale for importation, or the sale within the United
States after importation by the owner, importer,
or consigner, of an article that constitutes in-
fringement of the exclusive rights in a design pro-
tected under chapter 13 of title 17.
19 U.S.C. § 1337 (alteration in original) (emphases
added).
The Commission’s jurisdiction to remedy unfair inter-
national trade practices is limited to “unfair acts” involv-
ing the importation of “articles.” 19 U.S.C. § 1337(a).
Thus, when there is no importation of “articles” there can
be no unfair act, and there is nothing for the Commission
to remedy. Here, the only purported “article” found to
have been imported was digital data that was transferred
electronically, i.e., not digital data on a physical medium
such as a compact disk or thumb drive. The Commission’s
April 3, 2014, majority opinion devotes twenty-one pages
of analysis to the question of whether “articles” encom-
passes digital data and ultimately concludes that it does.
We have exclusive jurisdiction over “final determina-
tions of the United States International Trade Commis-
sion relating to unfair practices in import trade made
under Section 337 of the Tariff Act of 1930.” 28 U.S.C.
§ 1295(a)(6) (1994). However, when dealing with the
interpretation of Section 337, “the ITC is entitled to
appropriate deference.” Enercon GmbH v. Int’l Trade
Comm’n, 151 F.3d 1376, 1381 (Fed. Cir. 1998). As we
recently held in Suprema, “[t]here is no dispute that
Congress has delegated authority to the Commission to
resolve ambiguity in Section 337 if the Commission does
so through formal adjudicative procedures.” Suprema,
Inc., 2015 WL 4716604 at *6. Furthermore, because the
“Commission’s investigations under Section 337 require
adequate notice, cross-examination, presentation of
12 CLEARCORRECT OPERATING, LLC v. ITC
evidence, objection, motion, argument, and all other
rights essential to a fair hearing,” “we review the Com-
mission’s interpretation pursuant to Chevron . . . .” Id.
(citations omitted) (internal quotation marks omitted).
Under Chevron, in reviewing an agency’s construction
of its organic statute, we address two questions. City of
Arlington, Tex. v. FCC, 133 S. Ct. 1863, 1868 (2013). The
two questions are as follows:
The first is whether Congress has directly spoken
to the precise question at issue. If the answer is
yes, then the inquiry ends, and we must give ef-
fect to Congress’ unambiguous intent. If the an-
swer is no, the second question is whether the
agency’s answer to the precise question at issue is
based on a permissible construction of the statute.
The agency’s interpretation governs in the ab-
sence of unambiguous statutory language to the
contrary or unreasonable resolution of language
that is ambiguous.
Suprema, Inc., 2015 WL 4716604 at *6 (citations omitted)
(internal quotation marks omitted) (brackets omitted).
A. Chevron Step One
“In construing a statute, we begin with its literal text,
giving it its plain meaning.” Hawkins v. United States,
469 F.3d 993, 1000 (Fed. Cir. 2006).
If the statutory language is plain, we must enforce
it according to its terms. But oftentimes the
meaning—or ambiguity—of certain words or
phrases may only become evident when placed in
context. So when deciding whether the language
is plain, we must read the words in their context
and with a view to their place in the overall statu-
tory scheme.
CLEARCORRECT OPERATING, LLC v. ITC 13
King, 135 S. Ct. at 2489 (citations omitted) (internal
quotation marks omitted).
Here we conclude that the literal text by itself, when
viewed in context and with an eye towards the statutory
scheme, is clear and thus answers the question at hand.
“Articles” is defined as “material things,” and thus does
not extend to electronic transmission of digital data.
1
The term “articles” is not defined in the Act. “In the
absence of such a definition, we construe a statutory term
in accordance with its ordinary or natural meaning.”
FDIC v. Meyer, 510 U.S. 471, 476 (1994) (citing Smith v.
United States, 508 U.S. 223, 228 (1993)). When looking to
the term’s plain meaning we must look first not to the
1930 Tariff Act but instead its predecessor, the 1922
Tariff Act. That is because the term “articles,” as used in
Section 337 of the Tariff Act, originates in section 316 of
the Tariff Act. Section 316(a) reads in part:
That unfair methods of competition and unfair
acts in the importation of articles into the United
States, or in their sale by the owner, importer,
consignee, or agent of either, the effect or tenden-
cy of which is to destroy or substantially injure an
industry, efficiently and economically operated, in
the United States, or to prevent the establishment
of such an industry, or to restrain or monopolize
trade and commerce in the United States, are
hereby declared unlawful, and when found by the
President to exist shall be dealt with, in addition
to any other provisions of law, as hereinafter pro-
vided.
Tariff Act of 1922, Ch. 356 § 316 (1922) (emphasis added).
The Commission found that contemporaneous defini-
tions of “articles” “embrace a generic meaning that is
synonymous with a particular item or thing, such as a
14 CLEARCORRECT OPERATING, LLC v. ITC
unit of merchandise.” Final Comm’n Op. at 39. In doing
so, the Commission relies on the 1924 edition of Webster’s
that defines “article,” in pertinent part, as “something
considered by itself and as apart from other things of the
same kind or from the whole of which it forms a part; also,
a thing of a particular class or kind; as an article of mer-
chandise; salt is a necessary article.” Id. (citing Article,
WEBSTER’S NEW INTERNATIONAL DICTIONARY OF THE
ENGLISH LANGUAGE (1924)). Based on this definition, the
Commission concluded that “the term ‘article’ was under-
stood at the time of the enactment of the Tariff Act to
carry the meaning of an identifiable unit, item or thing,
with examples indicating that such articles may be traded
in commerce or used by consumers” and thus would
include digital data. Id. We disagree.
Contemporaneous dictionaries indicate that the term
“articles” is limited to a “material thing,” and thus could
not include digital data. 12 One such dictionary is cited in
a footnote of the Commission’s Opinion, FUNK &
WAGNALLS NEW STANDARD DICTIONARY OF THE ENGLISH
LANGUAGE published in 1931. Id. at n.20. This dictionary
defines “article” in relevant part as “a particular object or
substance; a material thing or class of things . . . .” Arti-
cle, FUNK & WAGNALLS NEW STANDARD DICTIONARY OF THE
ENGLISH LANGUAGE (1931) (emphasis added). Other
contemporaneous dictionaries provide similar definitions,
notably THE CENTURY DICTIONARY AND CYCLOPEDIA from
1911. This dictionary defines “article” as “[a] material
thing as part of a class, or, absolutely, a particular sub-
12 While normally we would turn to the Second Edi-
tion of BLACK’S LAW DICTIONARY, as it was contemporane-
ous with passage of the 1922 Tariff Act, that dictionary
only defines “article” in regard to written documents, not
with respect to trade.
CLEARCORRECT OPERATING, LLC v. ITC 15
stance or commodity . . . .” Article, THE CENTURY
DICTIONARY AND CYCLOPEDIA (1911) (emphasis added). 13
Additionally, WEBSTER’S NEW MODERN ENGLISH
DICTIONARY, published in 1922, defines an “article” as “a
material thing, as one of a class.” Article, WEBSTER’S NEW
MODERN ENGLISH DICTIONARY (1922) (emphasis added).
As the contemporaneous dictionaries demonstrate, the
meaning of the term “article” at the time of the passage of
the 1922 Tariff Act was a “material thing” and thus would
not include digital data.
The contemporaneous dictionary definition upon
which the Commission relied, the 1924 edition of Web-
ster’s, does not aid our search for the definition of “arti-
cles” because it is imprecise at best. It is notable,
however, that both examples provided in Webster’s dic-
tionary are of material things, indicating that the vague
language used was in reference to tangible items.
More modern dictionaries also support the conclusion
that an “article” is a tangible thing, including the three
that are referenced by the Commission in footnotes 20
and 21 of its final opinion. The Commission refers to
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY which
defines “article” as “one of a class of material things . . .
piece of goods; COMMODITY.” Article, WEBSTER’S THIRD
NEW INTERNATIONAL DICTIONARY (1966) (italicized empha-
sis added). The Commission additionally refers to the
2002 edition of WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY which defines “article” as “a material
thing . . . .” Article, WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY (2002) (emphasis added).
13 The Supreme Court cited to this dictionary exclu-
sively for the definition of “manufacture” when interpret-
ing the Plant Patent Act of 1930. Am. Fruit Growers v.
Brogdex Co., 283 U.S. 1, 11 (1931).
16 CLEARCORRECT OPERATING, LLC v. ITC
Finally, the Commission refers to RANDOM HOUSE
WEBSTER’S UNABRIDGED DICTIONARY as published in 2001,
which defines “article” as “an individual object, member
or portion of a class; an item or particular: an article of
food; articles of clothing. . . . an item for sale; commodity.”
Article, RANDOM HOUSE WEBSTER’S UNABRIDGED
DICTIONARY (2001) (emphases added). The Random House
dictionary’s use of the term “individual object” further
supports “article” being defined as a “material thing.”
Defining “articles” as “material things” is further con-
sistent with the United States Tariff Commission’s 14 own
definition of the term “articles” as laid out in its
DICTIONARY OF TARIFF INFORMATION, issued September
1924. While this dictionary is not a “regular dictionary”—
because it was published by the Commissioners—nor
perfectly contemporaneous—as it was published in 1924—
it does provide us with guidance as to how a person in the
respective field would have interpreted “articles” close to
the time of the passage of the Tariff Act. The DICTIONARY
OF TARIFF INFORMATION defines “articles” as follows:
The word “article” as ordinarily used in tariff acts
embraces commodities generally, whether manu-
factured wholly or in part or not at all. (Jungle v.
Heddon, 146 U.S., 233, 239.) It is used in this
sense in section 1 of Title I of the tariff act of
1922, subjecting to duty “all articles when import-
ed from any foreign country into the United States
or into any of its possessions (except the Philip-
pine Islands, the Virgin Islands, and the islands of
Guam and Tutuila),” and in section 201 of Title II
of that act, exempting from duty “the articles
14The United States Tariff Commission is the pre-
decessor of the International Trade Commission.
CLEARCORRECT OPERATING, LLC v. ITC 17
mentioned in the following paragraphs, when im-
ported in the United States or into any of its pos-
sessions (except the Philippine Islands, the Virgin
Islands, and the islands of Guam, and Tutuila).”
This broad use of the word is also shown in para-
graph 1514 of the act of 1922, exempting from du-
ty under stated conditions “articles of growth,
produce, or manufacture of the United States.”
As defined in section 318 of Title III of the act of
1922, which enlarges the duties of the Tariff
Commission, the word “article” includes any
commodities grown, produced, fabricated, manipu-
lated, or manufactured.
There are however, tariff provisions in which the
word “article” is used in a restricted sense, such as
those distinguishing articles from materials.
Thus, in paragraphs 920 of the act of 1922, the
words “articles” and “fabrics” are applied, respec-
tively, to finished manufactures and to partial
manufactures, and in paragraph 1015 provision is
made for “fabrics with fast edges: and also for “ar-
ticles made therefrom.”
The restricted use of the word “article” has been
recognized by the courts and the rule laid down
that where an intention appears from the text of
the law to give the word “article” a narrower
meaning than its ordinarily has, such meaning
shall be applied in the administration of the law.
The word “article,” as commonly accepted in trade
and elsewhere, has been declared to be something
different from bulky and heavy commodities.
(Harrison Supply Co. v. United States, 171 Fed.
406, 407.)
18 CLEARCORRECT OPERATING, LLC v. ITC
Vessels arriving at ports of the United States in
the ordinary course of navigation are not imported
articles. (The conqueror, 166 U.S. 110, 115.)
Articles, DICTIONARY OF TARIFF INFORMATION (1924)
(emphasis added). The aforementioned definition pro-
vides both the “ordinary” use of the term “articles” and
the possible scope of the term “articles,” i.e., its broadest
and narrowest definition. At its broadest, which the
dictionary deems its ordinary meaning, “articles” “em-
braces commodities generally, whether manufactured
wholly or in part or not at all.” The plain understanding
of this phrase is that it covers material items that are
fully manufactured, material items that are altered in
some way, or raw materials. This understanding of the
term is further established by the dictionary’s definition
of the narrowest use of the term “articles.” The dictionary
indicates that narrower definitions of “articles” “distin-
guish articles from materials.” Consequently, if the
narrowest definition is defined as a subset of “materials,”
there is an implication that the broadest understanding of
the term is confined to “materials.”
Finally, while the contemporaneous second edition of
BLACK’S LAW DICTIONARY does not shed light on the
definition of “article,” the third edition does. The third
edition of the dictionary, published in 1933, defines “arti-
cle” in relevant part as “A particular object or substance,
a material thing or a class of things.” Article, BLACK’S
LAW DICTIONARY (3d ed. 1933) (emphasis added). Again,
this definition provides further support that the term
“articles” is defined as a “material thing” and thus ex-
cludes purely digital data.
The aforementioned dictionaries make clear that the
ordinary meaning of the term “articles” is “material
things.” It is not a question of whether there are multiple
definitions for us to choose between. Instead, every
dictionary referenced by the Commission, with the exclu-
CLEARCORRECT OPERATING, LLC v. ITC 19
sion of one imprecise definition, along with all the other
relevant dictionaries point to the fact that “articles”
means “material things.” As we “must presume that [the]
legislature says in a statute what it means and means in
a statute what it says,” Conn. Nat’l Bank v Germain, 503
U.S. 249, 253-54 (1992), we conclude that “articles” does
not cover electronically transmitted digital data. 15
2
As the presence of ambiguity in the meaning of a term
“may only become evident when placed in context” with
the statute, we turn next to how “articles” is used
15 We briefly address two arguments raised by the
dissent regarding the proper definition of the term “arti-
cles” in Section 337. First, the dissent argues that in
Lucent Technologies, Inc. v. Gateway, Inc., 580 F.3d 1301,
1321 (Fed. Cir. 2009), we “rejected the argument that
digital files such as computer software are not a ‘material
or apparatus’ subject to infringement as set forth in the
Patent Act at 35 U.S.C. §271(c).” Dissent at 7. Lucent
involved a patent infringement suit. Thus, Lucent had
nothing to do with the scope of the Commission’s jurisdic-
tion. Indeed, it never even considered the term “article,”
instead assessing the meaning of the unrelated term
“material or apparatus.” Second, the dissent argues that
the term “‘article’ in the Tariff Act was intended to be all-
encompassing.” Id. at 10 (discussing United States v.
Eimer & Amend, 28 CCPA 10, (1940)). The “sole ques-
tion” in Eimer was whether the term “articles” should
cover “glass wool” objects, since such objects “do not have
definite form and shape.” Eimer, 28 CCPA at 12. Be-
cause the “glass wool” at issue in Eimer was undisputedly
a material object, Eimer is inapposite to the present
question of whether the term “articles” encompasses
intangible data.
20 CLEARCORRECT OPERATING, LLC v. ITC
throughout Section 337. King, 135 S. Ct. at 2489. The
use of the word “articles” in other sections of the 1930
Tariff Act reinforces the conclusion that Congress’s un-
ambiguously expressed intent was for “articles” to mean
“material things.”
The Supreme Court has consistently held that “identi-
cal words used in different parts of the same act are
intended to have the same meaning.” Sullivan v. Stroop,
496 U.S. 478, 484 (1990) (quoting Sorenson v. Sec’y of
Treasury, 475 U.S. 851, 860 (1986)); Helvering v. Stock-
holms Enskilda Bank, 293 U.S. 84, 87 (1934); Atl. Clean-
ers & Dyers, Inc. v. United States, 286 U.S. 427, 433
(1932). For “[i]t is a cardinal principle of statutory con-
struction that a statute ought, upon the whole, to be so
construed that, if it can be prevented, no clause, sentence,
or word shall be superfluous, void, or insignificant.” TRW
Inc. v. Andrews, 534 U.S. 19, 31 (2001) (internal quotation
marks omitted). The statutory context in which Congress
uses “articles” makes clear that Congress’s unambiguous-
ly expressed intent was for “articles” to mean “material
things,” not intangibles, for if “articles” had a broader
definition, numerous subsections would be rendered
inoperative.
The Commission concluded that because the term “ar-
ticles” appears in the statutory provisions defining a
violation of Section 337, 19 U.S.C. §§ 1337(a)(1)(A), (B),
(C), and (E), with the terms “importation” and “sale,” the
term “articles” is meant to encompass all “imported items
that are bought and sold in commerce.” Final Comm’n
Op. at 40. The Commission then stated that, in accord-
ance with various Supreme Court and circuit court cases,
“articles of commerce” includes digital files. We disa-
CLEARCORRECT OPERATING, LLC v. ITC 21
gree. 16 The context in which “articles” is used throughout
the chapter, not just this singular subsection, indicates
that “articles” means “material things.”
If the term “articles” was defined to include intangi-
bles, numerous statutory sections would be superfluous at
best. One such example is the forfeiture subsection of
Section 337. This section reads in part:
(i) Forfeiture
(1) In addition to taking action under subsection
(d) of this section, the Commission may issue an
order providing that any article imported in viola-
tion of the provisions of this section be seized and
forfeited to the United States if—
16 The Commission made this conclusion based upon
definitions of “articles of commerce” found in one Supreme
Court case and one Seventh Circuit case, Reno v. Condon,
528 U.S. 141, 148 (2000), and Senne v. Vill. of Palatine,
695 F.3d 617, 620 (7th Cir. 2012). Final Comm’n Op. at
40. These two cases are not relevant to the analysis at
hand; they interpret the Driver’s Privacy Protection Act
rather than the statute at issue in this case. See Sapna
Kumar, Regulating Digital Trade, FLA. L. REV., at 34
(Mar. 29, 2015) (Forthcoming) (discussing how the “courts
in these cases were looking at whether information could
be regulated as an ‘article of commerce’ under the Consti-
tution’s Commerce Clause” and that the term “article of
commerce” does not appear in either the Driver’s Privacy
Protection Act or the Constitution, thus making the cases
irrelevant to the determination of the definition of the
term “article”), available at
http://ssrn.com/abstract=2586740.
22 CLEARCORRECT OPERATING, LLC v. ITC
(A) the owner, importer, or consignee of the article
previously attempted to import the article into the
United States;
(B) the article was previously denied entry into
the United States by reason of an order issued
under subsection (d) of this section; and . . . .
19 U.S.C. § 1337(i) (emphasis added). This section per-
mits the Commission to exclude “articles” from importa-
tion into the United States; however, it is difficult to see
how one could physically stop electronic transmissions at
the borders under the current statutory scheme. Fur-
thermore, if articles included digital data, it would render
the section’s use of the terms “forfeited” and “seized”
hollow, as an electronic transmission cannot be “seized” or
“forfeited.” By way of example, digital transmissions from
satellites do not move through border crossings, nor can
they be stopped at our borders via any enforcement mech-
anism contemplated in the statutory scheme. As Com-
missioner David S. Johanson points out in his dissent, an
“exclusion order directed against electronic transmissions
could not only have no effect within the context of Section
337—it simply would make no sense as it would not be
enforce[able].” Final Comm’n Op. Dissent at 6 (David S.
Johanson, dissenting).
A construction of the term “articles” that includes
electronically transmitted digital data is also not reason-
able when applied to Section 337(i)(3). This section reads,
“[u]pon the attempted entry of articles subject to an order
issued under this subsection, the Secretary of the Treas-
ury shall immediately notify all ports of entry of the
attempted importation and shall identify the persons
notified under paragraph (1)(C).” Not only can an elec-
tronic transmission not be subject to an “attempted entry”
through a “port of entry,” it also cannot be intercepted at
a “port of entry” as contemplated in the statute. Return-
ing to our satellite example, once the transmission is
CLEARCORRECT OPERATING, LLC v. ITC 23
made from a satellite and directed to the United States, it
is illogical to consider its entry as an “attempted entry.”
The transmission either passes through our border or it
does not. If the term “articles” was intended by Congress
to be inclusive of nonmaterial objects, such as electronic
transmissions, it would render this section moot.
Align further argues that because “articles” is used in
connection with “articles that infringe,” “articles” must be
read broadly enough that it encompasses all possible
forms of infringement. We disagree. The question before
us is not what types of infringement are covered, but what
goods are protected from infringement under Section 337.
It is perfectly reasonable that Congress only intended
that some subset of infringing goods be covered by Section
337. “Further, were we to adopt [the Commission’s]
construction of the statute, we would render the word
‘[articles]’ insignificant, if not wholly superfluous. It is
our duty to give effect, if possible, to every clause and
word of a statute.” Duncan v. Walker, 533 U.S. 167, 174
(2001) (citation omitted).
3
We further look to the Tariff Act in its entirety as “the
words of a statute must be read in their context and with
a view to their place in the overall statutory scheme.”
King, 135 S. Ct. at 2492. As when defining words in a
statute, their ultimate meaning should remain consistent
with the remainder of the statute as a term’s meaning
must be “compatible with the rest of the law.” Util. Air
Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2442 (2014).
Here, the basic statutory scheme, and specifically its
original remedial scheme, provides further support for the
conclusion that Congress understood “articles” to mean
“material things” and not to include intangibles such as
digital data.
The original version of Section 337 provided only a
single remedy for violations:
24 CLEARCORRECT OPERATING, LLC v. ITC
Whenever the existence of any such unfair method
or act shall be established to the satisfaction of
the President he shall direct that the articles con-
cerned in such unfair methods or acts, imported
by any person violating the provisions of this Act,
shall be excluded from entry into the United
States, and upon information of such action by the
President, the Secretary of the Treasury shall,
through the proper officers, refuse such entry.
Tariff Act of 1930, Pub. L. 71-361, 46 Stat. 704 (1930).
This sole remedy of exclusion could only have an impact
on material things. Obviously, intangibles, such as elec-
tronic transmissions, do not pass through United States
ports and cannot be excluded by Customs. Thus, as
electronic transmissions of digital data could not be
excluded in the fashion contemplated by the Act, an
expansion of the term “articles” beyond “material things”
would mean that Congress included an entire set of
commodities in the statute without providing a method to
curtail their importation. The impossibility of this result
supports confining “articles” to “material things.”
The Commission points to the 1974 authorization of
cease and desist orders as support for its conclusion that
“articles” includes digital data. The Commission argues
that the addition of this section “strengthened the statute
to protect against unfairly traded imports by providing
additional remedies for a violation . . . .” Final Comm’n
Op. at 47. We disagree.
Congress’s 1974 authorization of cease and desist
orders supports the conclusion that the statutory scheme
is premised upon “articles” being defined as “material
things.” Fifty-two years after the creation of Section 337
Congress added a second remedial tool to the Commis-
sion’s arsenal, the cease and desist order. See Trade Act
of 1974, Pub. L. 93-618, 88 Stat. 1978, 2055 (1975). This
tool was meant to be used as a lesser and “softer remedy”
CLEARCORRECT OPERATING, LLC v. ITC 25
than exclusion orders rather than the exclusive remedy
which would be the case were digital data considered an
article. Textron, Inc. v. U.S. Int’l Trade Comm’n, 753 F.2d
1019, 1029 (Fed. Cir. 1985) (“[T]he contemplated range of
remedies was expanded by the Trade Act of 1974 to
include ‘softer’ sanctions such as cease-and-desist orders .
. . .”); see S. Rep. 93-1298 at 198 (1974). In fact, in passing
the bill, Congress made clear that “[n]o change [was]
made in the substance of the jurisdiction conferred under
Section 337(a) with respect to unfair methods of competi-
tion or unfair acts in the import trade.” S. Rep. No. 93-
1298, 1974 U.S.C.C.A.N. 7186, 7327 (1974). Instead, the
purpose of the provision, according to the Senate Report,
was to add “needed flexibility” because “the existing
statute, which provides no remedy other than the exclu-
sion of articles from entry, is so extreme or inappropriate
in some cases that it is often likely to result in the Com-
mission not finding a violation of this section.” Id. at
7331. Furthermore, while the Commission cites to the
repeated updates in the amount of the fine associated
with cease and desist orders as support for the fact that
this section expanded the scope of “articles,” there is no
logical connection between the amount of the fine and
whether cease and desist orders expanded the Commis-
sion’s jurisdiction.
The text of the cease and desist language further sup-
ports the conclusion that “articles” cannot be defined in
such a way as to include electronic transmissions. This is
because if “articles” was defined to include electronic
transmissions, the addition of cease and desist orders
would not be a lesser alternative for exclusion orders, but
an expansion of the exclusion power. We agree with
Commissioner David S. Johanson who argued in his
dissent that “[i]ndeed, [the cease and desist] provision
demonstrates that the definition of articles for Section
337(f) must be the same as the rest of the statute; other-
wise the provision for replacement [of cease and desist
26 CLEARCORRECT OPERATING, LLC v. ITC
orders with exclusion orders] would be rendered a nullity
and read out of the statute.” Final Comm’n Op. Dissent
at 8 (David S. Johanson, dissenting). The fact that a
definition of “articles” that includes intangibles would
read out the very purpose behind the inclusion of cease
and desist orders yields further evidence that the term
article is meant to be limited to tangibles.
Finally, Section 337’s connection to what is now
known as the Harmonized Tariff Schedule of the United
States (HTSUS) supports a narrower definition of the
term “articles” than provided by the Commission. When
the Tariff Act of 1930 was first passed it was, at its heart,
a tariff provision that imposed duties on specific imports.
Section 1 of the title reads:
That on and after the day following the passage of
this Act, except as otherwise specially provided for
in this Act, there shall be levied, collected, and
paid upon all articles when imported from any
foreign country into the United States or into any
of its possessions . . . the rates of duty which are
prescribed by the schedules and paragraphs of the
dutiable list of this title, namely:
46 Stat. 590 (emphasis added). Congress then provided
ninety-five pages of schedules identifying specific dutiable
and non-dutiable goods. Every single item in these
schedules was a material thing. See 46 Stat. 590-685.
Furthermore, Congress assumed that these schedules
were not comprehensive and thus included catchall claus-
es. One such clause can be found in paragraph 1559,
which reads in relevant part, “That each and every im-
ported article, not enumerated in this Act, which is simi-
lar, either in material, quality, texture, or the use to
which it may be applied to any article enumerated in this
Act . . . shall be subject to the same rate of duty which is
levied on the enumerated article . . . .” Id. at 672. Simi-
larly, paragraph 1558 states, “That there shall be levied,
CLEARCORRECT OPERATING, LLC v. ITC 27
collected, and paid on the importation of all raw or un-
manufactured articles not enumerated or provided for . . .
.” Id. Both of these catchalls are premised on the notion
that articles are tangible and dutiable. This provides
further evidence that the statutory scheme was to solely
regulate “material things” and thus not electronic trans-
mission of digital data, which is not dutiable.
Tariff Schedules have continued to limit articles to
tangibles. The dutiable schedules in the Tariff Act of
1930 were later replaced in 1963 with the Tariff Schedule
of the United States, Pub. L. 87-456. Accompanying this
revision was the Tariff Classification Study Submitting
Report. In this report, the Commission wrote, “General
headnote 5 sets forth certain intangibles which, under
various established customs practices, are not regarded as
articles subject to treatment under the tariff schedules.”
Id. at 18. This subsection includes items such as electrici-
ty, securities, and similar evidences of value. Id. at 12.
The Tariff Schedule of the United States was in turn
replaced by the Harmonized Tariff Schedule of the United
States in 1988, pursuant to the Omnibus Trade and
Competitiveness Act. Pub. L. 100-418 § 1206, 102 Stat.
1151, codified at 19 U.S.C. § 3006. While this schedule
included a heading for electrical energy, it specifically
removed it from the purview of section 484 of the Tariff
Act of 1930 and placed its regulation purely in the hands
of the Secretary of the Treasury. Section 484 regulates
the entry requirements under the Tariff Act. This succes-
sion of tariff schedules provides further evidence that the
Act’s scheme was not meant to include intangibles.
4
The clarity of the statutory context obviates the need
to turn to the legislative history. The Tariff Act’s legisla-
tive history further confirms the conclusion that “articles”
is limited to “material things,” however, and thus not
inclusive of electronic transmissions of digital data. This
28 CLEARCORRECT OPERATING, LLC v. ITC
is supported by two distinct points in the Tariff Act’s
legislative history: (1) the period of time when “articles”
first appeared in Section 337 of the Tariff Act of 1930,
inclusive of section 316 of the 1922 Tariff Act; and (2) the
legislative history from 1988 in which for the first time
the Tariff Act was expanded to explicitly cover IP in-
fringement.
The Commission argues that, because Congress treat-
ed the terms “goods” and “articles” as synonymous within
the legislative history, articles must be read broadly.
Final Comm’n Op. at 39. We agree with the Commission
in part and disagree in part. We agree with the Commis-
sion that Congress used “goods” and “articles” synony-
mously at the time of the passage of the Act; 17 18 however,
we disagree that this mandates a definition of “articles”
that is broader than “material things.”
At the time of enactment “goods” had a clear defini-
tion. The second edition of BLACK’S LAW DICTIONARY,
17 “The House and Senate Reports of the 1922 and
1930 Acts and Congressional debate refer to articles as
synonymous with goods . . . . See S. Rep. 67-595 at 3
(1922); H.R. Rep. 71-7 at 3 (1929); 71 Cong. Rec. S. 3872,
4640 (1929).” Final Comm’n Op. at 43. For example, the
Senate Report stated its amendments were meant to
“prohibit the importation of particular goods for the
purpose of preventing unfair methods of competition in
the importation of goods.” S. Rep. 67-595 at 3. The report
further noted that, “The provision relating to unfair
methods of competition in the importation of goods is
broad enough to prevent every type and form of unfair
practice.” Id. at 3.
18 Our recent opinion in Suprema also uses “goods”
synonymously with “articles.” See Suprema, Inc., 2015
WL 4716604, at *1.
CLEARCORRECT OPERATING, LLC v. ITC 29
which was contemporaneous with the passage of the
Tariff Act, states that “goods” “[are] not so wide as ‘chat-
tels,’ for it applies to inanimate objects, and does not
include animals or chattels real.” Goods, BLACK’S LAW
DICTIONARY (2d ed. 1910). Black’s dictionary divides
“chattels” into two groups “chattels real” and “chattels
personal.” Id. at Chattels. “Chattels real” are “interests
in land which devolve after the manner of personal estate,
as leaseholds” while “chattels personal” are “movables
only.” Id. The clear conclusion to draw from this is that
“goods” are also limited to movables, i.e., material things.
Thus, both words used by Congress at the time of enact-
ment to describe the bounds of Section 337, “goods” and
“articles,” were limited to “material things.”
The Commission argues that the legislative history
relating to the Omnibus Trade and Competitiveness Act
of 1988 reaffirmed that “articles” was meant to include
digital data. The Commission relies on the relevant
Senate Report’s statement that the will of Congress was
to block any United States sale of a product covered by an
IP right, because “[t]he importation of any infringing
merchandise derogates from the statutory right, dimin-
ishes the value of the intellectual property, and thus
indirectly harms the public interest.” Final Comm’n Op.
at 48 (quoting S. Rep. 100-71 at 12-29 (1987); H.R. Rep.
100-40 at 156 (1987)). The Commission argues that the
use of the word “commerce” indicates that “articles”
should be read broadly. We disagree.
While the Omnibus Trade and Competitiveness Act
made numerous changes to the Tariff Act, it included no
language that increased the scope of “articles.” The
Commission’s argument fails to take into account the
contemporaneous definition of the term “merchandise.”
“Merchandise” was defined at the time as “[a]ll goods
which merchants usually buy and sell . . . , [b]ut the term
is generally not understood as including real estate” and
“goods,” while “a term of variable content and meaning,”
30 CLEARCORRECT OPERATING, LLC v. ITC
is ultimately defined as “[i]tems of merchandise, supplies,
raw materials, or finished goods. Merchandise, Goods,
BLACK’S LAW DICTIONARY (5th ed. 1979). Sometimes the
meaning of ‘goods’ is extended to include all tangible
items, as in the phrase ‘goods and services.’” Id. at Goods.
This definition makes clear, that at its broadest the
definition of “goods,” and thus merchandise, was limited
to tangible items.
This analysis comports with our opinion in Bayer. In
Bayer we analyzed the history of section 271(g) along with
its overlap with Section 337. We found that Congress
adopted the definition of “article” from Section 337 and
imported it into section 271(g). Bayer AG v. Housey
Pharm., Inc., 340 F.3d 1367, 1374 (Fed. Cir. 2003). Our
opinion concludes that “there is no indication of any
intent to reach products other than tangible products
produced by manufacturing processes.” Id. at 1375.
Furthermore we stated:
We recognize that section 1337 covers both arti-
cles that were “made” and articles that were “pro-
duced, processed, or mined.” While this language
in section 1337 perhaps suggests a broader scope
for section 1337 than for section 271(g), nothing in
section 1337 suggests coverage of information, in
addition to articles under section 271(g).
Id. at 1367, n.9.
In sum, the literal text, the context in which the text
is found within Section 337, and the text’s role in the
totality of the statutory scheme all indicate that the
unambiguously expressed intent of Congress is that
CLEARCORRECT OPERATING, LLC v. ITC 31
“articles” means “material things” and does not extend to
electronically transmitted digital data. 19 20
B. Chevron Step Two
As Congress’s expressed intent is unambiguous, we
need not address step two of Chevron. However, even if
we were to address step two, it is clear that the Commis-
sion’s interpretation of the term “articles” was unreason-
able.
Step two of Chevron requires us to determine “wheth-
er the [Commission’s] answer is based on a permissible
construction of the statute.” Chevron, U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S.
Ct. 2778, 2782, 81 L. Ed. 2d 694 (1984). Because the
Commission failed to properly analyze the plain meaning
of “articles,” failed to properly analyze the statute’s legis-
lative history, and improperly relied on Congressional
debates, the Commission’s analysis does not warrant
deference.
The Commission’s analysis of dictionary definitions
evidences the irrationality of the Commission’s interpre-
tation of the term “article.” While the Commission osten-
sibly analyzes various dictionary definitions, it fails to
adopt a definition consistent with any of the definitions it
references. For example, as discussed in the prior section,
the Commission turns to the 1924 edition of the Webster’s
dictionary for the definition of “article,” but rather than
adopt that definition it concludes that it will “embrace a
broader meaning that describes something that is traded
19 This is markedly different from Suprema where
we concluded that the relevant text was ambiguous. See
Suprema, Inc., 2015 WL 4716604, at *4-6.
20 We note that we do not limit the parties’ other le-
gal remedies, such as a possible action in district court.
32 CLEARCORRECT OPERATING, LLC v. ITC
in commerce.” Final Comm’n Op. at 39. In other words,
it generates its own definition, unrelated to the definition
provided by the dictionary.
Furthermore, the Commission inexplicably cites to
several dictionaries in two footnotes that support “arti-
cles” being defined as “material things,” but provides no
analysis as to why these dictionaries should not be con-
sidered.
Footnotes 20 and 21 read:
20 Some definitions of “article,” in addition to stat-
ing a broader generic meaning, also set forth a
more granular meaning of a material thing. For
example, a 1929 edition of Funk and Wagnall’s de-
fines “articles,” in pertinent part as: “A particular
object or substance; a material thing or class of
things; as, an article of food.” The Federal Circuit,
interpreting 35 U.S.C. § 271(g), noted one defini-
tion of “article” in Webster’s Third New Dictionary
(a more recent edition of Webster’s). “Article” is
there defined as “one of a class of material
things . . . pieces of goods; COMMODITY.” Thus,
while an “article” was understood to include some-
thing material, as shown in the text above, the
term was also understood to embrace a broader
meaning that describes something that is traded
in commerce.
21 More recent context relevant definitions of “ar-
ticles” are in accord. See, e.g. WEBSTER’S THIRD
NEW INTERNATIONAL DICTIONARY (2002) (“5: a ma-
terial thing”; . . . “6a: a thing of a particular class
of kind as distinct from a thing of another class of
kind”); RANDOM HOUSE WEBSTER’S UNABRIDGED
DICTIONARY (2nd Edition 2001) (“2. An individual
object, member, or portion of a class; an item or
particular; an article of food; articles of cloth-
ing; . . . 4. An item for sale; commodity”).
CLEARCORRECT OPERATING, LLC v. ITC 33
Id. (citation omitted).
Despite the definitions quoted in the footnotes run-
ning directly counter to the definition adopted by the
Commission, the Commission provides virtually no analy-
sis as to why they should not control. It is not reasonable
for the Commission to conclude that the dictionary defini-
tions that it cites “embrace a broader meaning that de-
scribes something that is traded in commerce,” when the
Commission’s definition cannot be found in any dictionary
cited by the Commission and the Commission’s conclusion
is not logically connected to any of the definitions cited by
the Commission.
Additionally, the Commission fails to properly analyze
the legislative history regarding the Tariff Act. This
failure is echoed in its briefing to the court. The Commis-
sion concludes, based in large part on a Senate Report
from 1922, that “The central purpose of Section 337, since
the enactment of the original statute in 1922, has been to
prevent every type of unfair act or practice in import
trade that harms U.S. industries.” Final Comm’n Op. at
44—45. The Commission’s Opinion cites the Senate
Report, S. Rep. 67-595, as authority for this conclusion
and then quotes it as follows:
The provision relating to unfair methods of com-
petition is broad enough to prevent every type and
form of unfair practice and is, therefore, a more
adequate protection to American industry than
any antidumping statute the country ever had.
However, the actual quote reads as follows:
The provision relating to unfair methods of com-
petition in the importation of goods is broad
enough to prevent every type and form of unfair
practice and is, therefore, a more adequate protec-
tion to American industry than any antidumping
statute the country ever had.
34 CLEARCORRECT OPERATING, LLC v. ITC
S. Rep. 67-595, at 3 (1922) (emphasis added). The Com-
mission’s omission of the phrase, “in the importation of
goods” is highly misleading; not only was a key portion of
the quote omitted, but it was omitted without any indica-
tion that there had been a deletion. 21 Furthermore, while
we may agree that the quote, as incorrectly stated by the
Commission, would indicate a broad authority for the
Commission, the phrase “in the importation of goods”
clearly limits the Commission’s authority. And as we
discussed above, it limits it in such a way as to exclude
non-material things. Because the Commission uses this
misquote as its main evidence that the purpose of the act
was to cover all trade, independent of what form it takes,
the Commission’s conclusion regarding the purpose of the
Act is unreasonable.
Finally, the Commission wrongly focuses on current
debates in Congress as indicative of what “articles”
means. The Commission comments as follows:
We note recent developments that show the ac-
ceptance of digital goods traded in commerce as
falling within international trade. Senators Bau-
cus and Hatch and Congressman Camp have in-
troduced Trade Promotion Authority bills that
instruct the Administration to seek increased pro-
tection for digital trade in future trade agree-
ments. Moreover, Congress has requested that
21 It is noteworthy that this is not the Commission’s
only failure to cite evidence correctly. The Commission
additionally states that “goods, commodities, and mer-
chandise” have the same definition as “articles” as defined
in the second edition of BLACK’S LAW DICTIONARY. Final
Comm’n Op. at 43. However, BLACK’S LAW DICTIONARY
does not provide the cited definition.
CLEARCORRECT OPERATING, LLC v. ITC 35
the Commission study the impact of digital trade
under Section 332, another part of Title 19.
Final Comm’n Op. at 43, 44 (citation omitted). This
analysis is improper. First, Congress has not passed any
of the cited bills. Second, even if the bills were passed,
they would not have informed us as to whether the Com-
mission has jurisdiction over digital goods.
In sum, the Commission repeatedly and unreasonably
erred in its analysis of the term “article.” It is not simply
a question of the Commission having the choice between
two “right” definitions, but instead it represents a sys-
tematic pattern of the Commission picking the wrong
conclusion from the evidence. Here the Commission has
not offered a reasoned explanation for its definition of
“articles” and thus is owed no deference.
III. CONCLUSION
While Congress’s intent regarding “articles” is unam-
biguous, it is worth repeating what we said in Bayer:
Under these circumstances we think it is best to
leave to Congress the task of expanding the stat-
ute if we are wrong in our interpretation. Con-
gress is in a far better position to draw the lines
that must be drawn if the product of intellectual
processes rather than manufacturing processes
are to be included within the statute.
Bayer, 340 F.3d at 1376-77.
For the reasons stated above, we reverse and remand
the Commission’s decision, finding that the Commission
does not have jurisdiction over this case.
REVERSED AND REMANDED
United States Court of Appeals
for the Federal Circuit
______________________
CLEARCORRECT OPERATING, LLC,
CLEARCORRECT PAKISTAN (PRIVATE), LTD.,
Appellants
v.
INTERNATIONAL TRADE COMMISSION,
Appellee
ALIGN TECHNOLOGY, INC.,
Intervenor
______________________
2014-1527
______________________
Appeal from the United States International Trade
Commission in Investigation No. 337-TA-833.
______________________
O’MALLEY, Circuit Judge, concurring.
I agree with the majority’s well-reasoned conclusion
that the International Trade Commission (“the Commis-
sion”) lacks jurisdiction over this case. The majority’s
analysis under the Chevron framework correctly reveals
that the Commission’s interpretation of 19 U.S.C. § 1337
(“Section 337”) is not entitled to deference. I write sepa-
rately, however, because I believe we need not resort to
Chevron steps one and two to resolve this matter.
Deference to an agency interpretation under the
Chevron framework “is premised on the theory that a
2 CLEARCORRECT OPERATING, LLC v. ITC
statute’s ambiguity constitutes an implicit delegation
from Congress to the agency to fill in the statutory gaps.”
King v. Burwell, 135 S. Ct. 2480, 2488 (2015) (quoting
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
159 (2000)). There are “extraordinary cases,” however,
where we should “hesitate before concluding that Con-
gress has intended such an implicit delegation.” Id. at
2488-89 (quoting FDA, 529 U.S. at 159). In other words,
there are times when courts should not search for an
ambiguity in the statute because it is clear Congress could
not have intended to grant the agency authority to act in
the substantive space at issue. This is one of those ex-
traordinary cases. Where, as here, Congress has not
delegated authority to an agency, courts need not apply
the Chevron framework to the agency’s interpretation of
its governing statute. See id. at 2489.
The Commission has concluded that it has jurisdiction
over all incoming international Internet data transmis-
sions. It reaches this conclusion despite never having
purported to regulate Internet transmissions in the past,
despite no reference to data transmissions in the statute
under which it acts, despite an absence of expertise in
dealing with such transmissions, and despite the many
competing policy concerns implicated in any attempt to
regulate Internet transmissions. The Internet is “argua-
bly the most important innovation in communications in a
generation.” Comcast Corp. v. FCC, 600 F.3d 642, 661
(D.C. Cir. 2010). If Congress intended for the Commission
to regulate one of the most important aspects of modern-
day life, Congress surely would have said so expressly.
Utility Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2444
(2014) (rejecting EPA’s vast expansion of its program of
requiring clean air permits because such an expansion
“would bring about an enormous and transformative
expansion in EPA’s regulatory authority without clear
congressional authorization”). The Supreme Court has
noted that “[w]hen an agency claims to discover in a long-
CLEARCORRECT OPERATING, LLC v. ITC 3
extant statute an unheralded power to regulate ‘a signifi-
cant portion of the American economy,’ we typically greet
its announcement with a measure of skepticism.” Id. The
Court further indicated that Congress must “speak clearly
if it wishes to assign to an agency decisions of vast ‘eco-
nomic and political significance.’” Id. (quoting FDA, 529
U.S at 160). Here, far from clearly addressing the issue of
whether the Commission should have jurisdiction over the
international exchange of data on the Internet, Congress’s
last major amendment to Section 337 was in 1988, one
year before the invention of the World Wide Web. See
Sapna Kumar, Regulating Digital Trade, 67 FLA. L. REV.,
at 28-32 (forthcoming 2015) (reviewing legislative history
of the Tariff Act with respect to the term “articles”).
Although the Commission’s jurisdiction over imported
physical goods is undeniable, it is very unlikely that
Congress would have delegated the regulation of the
Internet to the Commission, which has no expertise in
developing nuanced rules to ensure the Internet remains
an open platform for all. See King, 135 S. Ct. at 2489.
Instead, the responsibility lies with Congress to decide
how best to address these new developments in technolo-
gy. See Microsoft v. AT&T Corp., 550 U.S. 437, 458-59
(2007) (“If the patent law is to be adjusted better to ac-
count for the realities of software distribution, the altera-
tion should be made after focused legislative
consideration.”) (quotation omitted); see also Gottschalk v.
Benson, 409 U.S. 63, 73 (1972) (“If [computer] programs
are to be patentable, considerable problems are raised
which only committees of Congress can manage, for broad
powers of investigation are needed, including hearings
which canvass the wide variety of views which those
operating in this field entertain.”).
Indeed, Congress has enacted laws and debated bills
whose intent is to balance an interest in open access to
the Internet and the need to regulate potential abusers.
See, e.g., Communications Decency Act of 1996, 47 U.S.C.
4 CLEARCORRECT OPERATING, LLC v. ITC
§ 230(b)(1), (c)(1) (2012) (statute enacting immunity from
liability for Internet service providers in order to “promote
the continued development of the Internet and other
interactive computer services and other interactive me-
dia”); 17 U.S.C. § 512 (statute limiting copyright in-
fringement liability based on a similar policy); The Digital
Trade Act of 2013, S.1788, 113th Cong. (2013–2014) (bill
seeking to have agencies “staffed with experts and leaders
to fulfill the mission of promoting an open, global Internet
that facilitates commerce and digital trade”); Online
Protection and Enforcement of Digital Trade Act, S.
2029/H.R. 3782 (112th Cong. 2011–2013) (bill proposing
amendment of the Tariff Act to formally confer the ITC
with jurisdiction over digital importation). Not once in
these debates has Congress said or implied that it need
not concern itself with these issues because it had already
delegated the authority to do so to the Commission.
Because Congress did not intend to delegate such authori-
ty to the Commission, I would find the two step Chevron
inquiry inapplicable in this case; I would find that we
never get past what some refer to as Chevron step zero
when assessing the propriety of the Exclusion Order
before us. 1
1 Chevron “step zero” has been defined as “the ini-
tial inquiry into whether the Chevron framework applies
at all.” See Cass R. Sunstein, Chevron Step Zero, 92 VA.
L. REV. 187, 191 (2006). Some scholars believe this addi-
tional inquiry aids and streamlines review of administra-
tive decision making. See, e.g., Thomas W. Merrill,
Symposium, Chevron at 30: Looking Back and Looking
Forward: Step Zero After City of Arlington, 83 FORDHAM
L. REV. 731, 744 (2014) (opining that the announcement of
the Chevron step zero inquiry in United States v. Mead
Corp., 533 U.S. 218 (2001) was a “positive” step forward
CLEARCORRECT OPERATING, LLC v. ITC 5
Assuming, arguendo, that the Chevron framework
does apply to the Commission’s interpretation, however, I
agree with the majority’s ruling that the Commission
erred when it determined that it had jurisdiction over the
disputed digital data.
in administrative law, and critiquing more recent devel-
opments in Chevron step zero jurisprudence).
United States Court of Appeals
for the Federal Circuit
______________________
CLEARCORRECT OPERATING, LLC,
CLEARCORRECT PAKISTAN (PRIVATE), LTD.,
Appellants
v.
INTERNATIONAL TRADE COMMISSION,
Appellee
ALIGN TECHNOLOGY, INC.,
Intervenor
______________________
2014-1527
______________________
Appeal from the United States International Trade
Commission in Investigation No. 337-TA-833.
______________________
NEWMAN, Circuit Judge, dissenting.
Today’s culture, as well as today’s economy, are
founded on advances in science and technology. As the
Industrial Revolution advanced, and recognizing the
importance to the nation of technology-based industry,
the Tariff Acts of 1922 and 1930 were enacted to provide
additional support to domestic industries that dealt in
new and creative commerce, by providing an efficient
safeguard against unfair competition by imports that
infringe United States patents or copyrights. The Inter-
national Trade Commission correctly applied the Tariff
2 CLEARCORRECT OPERATING, LLC v. ITC
Act and precedent to encompass today’s forms of infring-
ing technology.
The new technologies of the Information Age focus on
computer-implemented methods and systems, whose
applications of digital science provide benefits and con-
veniences not imagined in 1922 and 1930. Throughout
this evolution, Section 337 served its statutory purpose of
facilitating remedy against unfair competition, by provid-
ing for exclusion of imports that infringe United States
intellectual property rights.
Until today.
The court today removes Section 337 protection from
importations that are conducted by electronic transmis-
sion. The court’s reason is that electronically transmitted
subject matter is not “tangible,” and that only tangible
imports are subject to exclusion. This holding is contrary
to Section 337, and conflicts with rulings of the Supreme
Court, the Federal Circuit, the Court of Customs and
Patent Appeals, the Court of International Trade, the
International Trade Commission, the Customs authori-
ties, and the Department of Labor. I respectfully dissent.
Infringement is not here at issue; the only is-
sue is the Section 337 cease and desist order.
The imports are infringing “digital models, digital da-
ta, and treatment plans for use in making incremental
dental positioning adjustment appliances,” produced for
ClearCorrect in Pakistan and imported into the United
States by electronic transmission. The International
Trade Commission found, and it is not disputed, that the
imported data sets are “virtual three-dimensional models”
of a patient’s teeth, and that the imports are used in the
United States to make a three-dimensional physical
model of the dental appliance. Certain Digital Models,
Digital Data, & Treatment Plans for Use in Making
Incremental Dental Positioning Adjustment Appliances,
CLEARCORRECT OPERATING, LLC v. ITC 3
the Appliances Made Therefrom, & Methods of Making the
Same, Inv. No. 337-TA-833, at 17 (April 10, 2014)
(“Comm’n Op.”).
Infringement of the Align Technology patents is not at
issue. The only issue is whether the Section 337 remedy
is available to exclude the infringing digital subject mat-
ter. The Commission, reviewing the “plain language of
the statute, its legislative history and purpose, pertinent
case law, and the arguments of the parties and public
commenters,” held that “the digital data sets at is-
sue . . . are true articles of international commerce that
are imported into the United States, and their inclusion
within the purview of section 337 would effectuate the
central purpose of the statute.” Comm’n Op. at 55.
The Commission issued a Cease and Desist Order
against “importing (including through electronic trans-
mission)” the digital models, digital data, and orthodontic
plans that were found to infringe the Align patents.
Order (April 3, 2014). The panel majority now revokes
that Order, holding that imports reaching the United
States by electronic transmission are not subject to Sec-
tion 337. This ruling is contrary to the statute and con-
trary to precedent; and if there were there doubt as to the
intended scope of Section 337, the Commission’s ruling
requires deference.
The Commission correctly held that section
337 applies to imports of infringing digital
goods.
Section 337 of the Tariff Act of 1930, as amended,
makes unlawful:
(B) The importation into the United States, the
sale for importation, or the sale within the United
States after importation . . . of articles that—
(i) infringe a valid and enforceable United
States patent or . . . copyright . . . ; or
4 CLEARCORRECT OPERATING, LLC v. ITC
(ii) are made, produced, processed, or mined
under, or by means of, a process covered by
the claims of a valid and enforceable United
States patent.
19 U.S.C. § 1337(a)(1)(B)(i)-(ii).
The Commission determined that ClearCorrect’s in-
fringement of the Align patents in the United States, and
infringement by the process practiced for ClearCorrect in
Pakistan, is subject to Section 337. The court’s rejection
of that ruling is in contravention of the text and the
purpose of Section 337 of the Tariff Act.
Section 337 was enacted to facilitate the protection of
American industry against unfair competition by infring-
ing imports. The statute was designed to reach “every
type and form” of unfair competition arising from impor-
tation. The Senate Report stated: “The provision relating
to unfair methods of competition in the importation of
goods is broad enough to prevent every type and form of
unfair practice and is, therefore, a more adequate protec-
tion to American industry than any antidumping statute
the country has ever had.” S. Rep. No. 67-595 at 3 (1922).
Our predecessor Court of Customs and Patent Ap-
peals emphasized that this purpose is “to give to indus-
tries of the United States, not only the benefit of the
favorable laws and conditions to be found in this country,
but also to protect such industries from being unfairly
deprived of the advantage of the same and permit them to
grow and develop.” Frischer & Co. v. Bakelite Corp., 39
F.2d 247, 259 (CCPA 1930).
Until today, this Tariff Act provision has been inter-
preted to implement this protective incentive. In In re
Northern Pigment Co., 71 F.2d 447 (CCPA 1934), the
court applied Section 337 to reach products produced
abroad by a process patented in the United States, stating
that “if unfair methods of competition or unfair acts in the
CLEARCORRECT OPERATING, LLC v. ITC 5
importation of articles into the United States are being
practiced or performed by any one, they are to be regard-
ed as unlawful, and the section was intended to prevent
them.” Id. at 455. This ruling is codified at Section
1337(a)(1)(B)(ii), supra.
Over the decades, the International Trade Commis-
sion and the Court of Customs and Patent Appeals im-
plemented Section 337 “to provide an adequate remedy for
domestic industries against unfair methods of competition
and unfair acts initiated by foreign concerns operating
beyond the in personam jurisdiction of domestic courts.”
Sealed Air Corp. v. Int’l Trade Comm’n, 645 F.2d 976, 985
(CCPA 1981). The Federal Circuit reiterated this pur-
pose, stating in Lannom Mfg. Co. v. Int’l Trade Comm’n,
799 F.2d 1572 (Fed. Cir. 1986), that “the purpose of
section 337 from its inception was to provide relief to
United States industry from unfair acts, including in-
fringement of United States patents by goods manufac-
tured abroad.” Id. at 1580.
Congress again considered Section 337 during the
process of enacting the Omnibus Trade and Competitive-
ness Act of 1988, Pub. L. No. 100-418 § 1341, 102 Stat.
1107, stating that:
As indicated by the scope of its language, section
337 was intended to cover a broad range of unfair
acts not then covered by other unfair import laws.
However, over the years, patent, copyright, and
trademark infringement were recognized as un-
fair trade practices within the meaning of section
337, and today section 337 is predominantly used
to enforce U.S. intellectual property rights.
S. Rep. No. 100-71 (1987) at 130. The Act itself reiterated
the purpose to provide “a more effective remedy for the
protection of United States intellectual property rights”
through exclusion of infringing imports. Omnibus Trade
6 CLEARCORRECT OPERATING, LLC v. ITC
and Competitiveness Act of 1988, Pub. L. No. 100-418 §
1341(b), 102 Stat. 1107, 1212.
This court recently reaffirmed that “the legislative
history consistently evidences Congressional intent to
vest the Commission with broad enforcement authority to
remedy unfair trade acts.” Suprema, Inc. v. Int’l Trade
Comm’n, 796 F.3d 1338, 1350 (Fed. Cir. 2015) (en banc).
The purpose of Section 337 to provide a facilitated
remedy against infringing imports is beyond dispute. The
panel majority’s removal of this remedy from a pre-
eminent form of today’s technology is a dramatic with-
drawal of existing rights, devoid of statutory support and
of far-reaching impact. The majority’s ruling, that digital
goods cannot be excluded under Section 337 because
digital goods are “intangible,” is incorrect.
The Commission correctly held that Section
337 is not limited to the kinds of technology
that existed in 1922 or 1930.
Patents are for things that did not previously exist,
including kinds of technology that were not previously
known. The panel majority, rejecting today’s digital
technologies and overruling the International Trade
Commission, holds that Section 337 does not apply to
digital technology forms that the majority describes as
“intangible.” It is not disputed that digital information,
such as the data sets and models here imported, is pa-
tentable subject matter and can be infringing subject
matter. There is no basis for excluding imported infring-
ing subject matter from Section 337, whatever the form of
the subject matter.
The Supreme Court in Fortnightly Corp. v. United
Artists Television, Inc., 392 U.S. 390 (1968), considered “a
statute that was drafted long before the development of
the electronic phenomena with which we deal here,”
stating that “[w]e must read the statutory language . . . in
CLEARCORRECT OPERATING, LLC v. ITC 7
the light of drastic technological change.” Id. at 395-96.
This rule aptly applies to the Tariff Acts of 1922 and
1930.
The Court has referred to adaptation of the copyright
statute to new technologies, observing in Twentieth Cen-
tury Music Corp. v. Aiken, 422 U.S, 151 (1975), that
although Congress did not revise the Copyright Act of
1909 following the advent of radio (and television), “copy-
right law was quick to adapt to prevent the exploitation of
protected works through the new electronic technology.”
Id. at 158. The Court noted the “ultimate aim” of the
copyright law “to stimulate artistic creativity for the
general public good,” and stated that “[w]hen technologi-
cal change has rendered its literal terms ambiguous, the
Copyright Act must be construed in light of this basic
purpose.” Id. at 156.
The Commission has previously dealt with Section
337 importation in the form of digitally distributed soft-
ware and digital files, stating that “[h]aving found that
respondents’ software contributorily infringes the claims
in issue, we are of the view that our remedial orders must
reach that software.” Certain Hardware Logic Emulation
Systems, Inv. No. 337-TA-383, USITC Pub. 3089, at 18
(March 1998). The court’s ruling today contravenes
Commission precedent, as well as our own.
The Federal Circuit dealt with the nature of digital
files in Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d
1301, 1321 (Fed. Cir. 2009). The court rejected the argu-
ment that digital files such as computer software are not
a “material or apparatus” subject to infringement as set
forth in the Patent Act at 35 U.S.C. § 271(c). This reason-
ing applies to the “articles” subject to infringement as set
forth in the Tariff Act at 19 U.S.C. § 1337. The court’s
decision today is a distortion of the statute’s language and
purpose, for Section 337 is designed to cover infringing
8 CLEARCORRECT OPERATING, LLC v. ITC
subject matter; and digital software, as noted in Lucent,
can be infringing subject matter.
Until today, Section 337 applied to all patented tech-
nologies, including digital technologies, whatever the path
of importation. The court’s exclusion of digital products
and data technologies imported by electronic transmission
has no support in statute, precedent, or policy.
The Commission correctly held that “arti-
cles” in the Tariff Act means “articles of
commerce.”
The Commission held that the term “articles” in the
Tariff Act is intended to include all infringing imported
“articles of commerce.” The Commission stated that “the
statutory construction of ‘articles’ that hews most closely
to the language of the statute and implements the avowed
Congressional purpose for Section 337 encompasses
within its scope the electronic transmission of the digital
data sets at issue in this investigation.” Comm’n Op. at
36.
The panel majority holds that the term ”articles” in
the Tariff Act excludes imported digital articles, but in a
different section, the Tariff Act definition of “article” is
unchanged from the 1922 and 1930 statutes:
The term “article” includes any commodity,
whether grown, produced, fabricated, manipulat-
ed, or manufactured.
19 U.S.C. § 1332(e)(1); Tariff Act of 1930, Part II, § 332,
46 Stat. 590, 699 (1930); Tariff Act of 1922, Part II, §
318(b), 42 Stat. 858, 947 (1922). This definition is strik-
ing in its breadth, and is commensurate with the stated
purpose to reach “every type and form of unfair practice,”
see Senate Rep. No. 67-595, supra.
Digital articles of commerce did not exist when the
Tariff Act was first enacted. However, the intention to
CLEARCORRECT OPERATING, LLC v. ITC 9
omit unforeseen, later-discovered technologies cannot be
imputed to this statute, and is negated by the all-
inclusive breadth of the definition that was written.
Nonetheless, the panel majority rules that the digital
data sets and digital models that are here imported are
not “material things” and therefore are excluded from
Section 337. Maj. Op. at 27. Citing definitions in diction-
aries of the 1920s, the majority rules that digital goods
are “intangible,” and that infringing imports when elec-
tronically transmitted are excluded from the Tariff Act.
However, the Tariff Act did not lock Section 337 into
the technology in existence in 1922 or 1930. It cannot
have been the legislative intent to stop the statute with
the forms of “article” then known. Further, the particles
and waveforms of electronics and photonics and electro-
magnetism are not intangible, although not visible to the
unaided eye. 1
Section 337 was written in broad terms, whereby no
field of invention, past, present, or future, was excluded.
It is not reasonable to impute the legislative intent to
exclude new fields of technology, and inventions not yet
made, from a statute whose purpose is to support inven-
tion.
The court nonetheless imputes this legislative pur-
pose to the Tariff Act, placing weight on selected defini-
tions of “article” in dictionaries of the 1920s, while
dismissing unselected definitions as “imprecise at best.”
1 It is reported that the elusive Higgs boson, a fun-
damental particle of matter, has been detected by observ-
ing its effects. By the same laws of physics, digital matter
is most readily observed in its effects. The panel majori-
ty’s ruling that such matter is not “material” is contrary
to the law of the courts, the Customs agency, and the
Commission.
10 CLEARCORRECT OPERATING, LLC v. ITC
Maj. Op. at 15. Thus the court arbitrarily rejects the
definition in the leading dictionary of the era, Webster’s
New International Dictionary of the English Language,
1924 Edition, and the 1934 Second Edition, which define
“article” broadly and generally, as “a thing of a particular
class or kind as distinct from a thing of another class or
kind; a commodity; as, an article of merchandise.” Mer-
chandise, in turn, is defined as “the objects of commerce;
whatever is usually bought and sold in trade; wares;
goods.”
Precedent has long recognized that “article” in the
Tariff Act was intended to be all-encompassing. The
Court of Customs and Patent Appeals in 1940, citing
Webster’s New International Dictionary, explained that,
in the Tariff Act of 1930, “Congress said: ‘and paid upon
all articles when imported from any foreign country.’
Unquestionably, Congress meant, by employing that
language, to include under the word ‘articles’ any provid-
ed-for substance, material or thing of whatever kind or
character that was imported into this country.” United
States v. Eimer & Amend, 28 CCPA 10, 12 (1940).
The Commission defined “articles” in Section 337 to
encompass “articles of commerce.” Comm’n Op. at 40.
The Supreme Court defined “articles of commerce” to
include pure information, holding in Reno v. Condon, 528
U.S. 141 (2000), that the Commerce Clause applies to
interstate transmission of information in motor vehicle
records sold or released “into the interstate stream of
business.” Id. at 148.
Although data sets carrying information, imported by
electronic or photonic or electromagnetic transmission,
are not mentioned in the dictionaries of the 1920s, no
reason has been shown to exclude them from articles of
commerce. No dictionary, and no statutory constraint,
limits “articles” to items that are grossly “tangible.” Data
carried by electronic particles or waves constitute articles
CLEARCORRECT OPERATING, LLC v. ITC 11
of commerce, and may be imported, bought and sold,
transmitted, and used.
My colleagues’ removal of digital goods from the Tariff
Act is devoid of definitional or statutory support. The
Commission correctly defined “articles” in Section 337 as
meaning articles of commerce, including digital articles
and electronic commerce.
The Commission correctly held that importa-
tion of infringing articles is not restricted to
specific kinds of carriers or modes of entry.
It is not disputed that the digital data sets and digital
models of teeth are imported. Importation subject to
Section 337 does not depend on the mode of entry into the
territory of the United States:
Importation . . . consists in bringing an article into
a country from the outside. If there be an actual
bringing in it is importation regardless of the
mode in which it is effected. Entry through a cus-
toms house is not of the essence of the act.
Cunard S.S. Co. v. Mellon, 262 U.S. 100, 122 (1923).
The Bureau of Customs and Border Protection has es-
tablished that Internet transmission is “importation” into
the United States. See HQ 114459 (Sept. 17, 1998) (“We
further find that the transmission of software modules
and products to the United States from a foreign country
via the Internet is an importation of merchandise into the
customs territory of the United States”). The Customs
rulings reflect the accepted view that digital products are
“articles of commerce,” “goods,” or “merchandise.”
The Customs statute classifies software as “merchan-
dise” under 19 U.S.C. § 1401(c). See HQ114459 (“we find
that the subject software modules and products are ‘mer-
chandise’ and ‘goods’ . . .”); see also Heading 8523, USHTS
(2015) (Rev. 2) (classifying software for importation
12 CLEARCORRECT OPERATING, LLC v. ITC
duties). Although the panel majority argues that the
Tariff Schedule exempts telecommunications transmis-
sions from import duties, see General Note 3(e)(ii),
HTSUS (2015) (Rev. 2), it is established that telecommu-
nications transmissions, including electronically imported
software, are within the purview of the Customs service.
The Court of International Trade stated in Former Em-
ployees of Computer Sciences Corp. v. U.S. Secretary of
Labor, 30 Ct. Int’l. Tr. 124, 414 F. Supp. 2d 1334, (2006):
General Note 3(e) supports the conclusion that
telecommunications transmissions, which would
include transmissions of software code via the In-
ternet, are exempt from duty while acknowledging
that they are goods entering into the Customs
boundaries of the United States.
Id. at 131.
Exemption from import duty is not exemption from
patent infringement. The court now discards established
protocols and practices concerning electronic and digital
technologies, although it is beyond debate that digital
articles are “goods” or “merchandise” and may be bought
and sold and patented and imported. Today’s ruling
discards the Tariff Act’s purpose of protecting domestic
industry from unfair trade in the importation of this vast
and powerful body of commercial articles that may in-
fringe United States patents.
The Commission correctly held that electron-
ic importation of digital goods is subject to
the trade laws.
My colleagues on this panel do not dispute that the
Patent Act applies to the subject matter that is imported,
although they hold that the Tariff Act does not apply,
thereby rendering Section 337 incapable of performing its
statutory purpose.
CLEARCORRECT OPERATING, LLC v. ITC 13
Section 337 does not distinguish between digital goods
imported electronically and digital goods imported as
embedded in a physical medium. My colleagues hold that
importation of infringing digital data can be excluded
when the data are carried on discs or other storage media,
but cannot be excluded when carried in packets or waves
by wired or wireless transmission. This distinction has
long been discarded as unjustifiable, and in the context of
Section 337 and other Trade statutes and rulings, prece-
dent is universally contrary.
The Commission explained in Hardware Logic Emula-
tion Systems, supra, that “it would be anomalous for the
Commission to be able to stop the transfer of a CD-ROM
or diskette containing respondents’ software, but not be
able to stop the transfer of that very same software when
transmitted in machine readable form by electronic
means.” Id. at 29.
Reaching the same logical conclusion, the Department
of Labor, interpreting the Trade Act for purposes of Trade
Adjustment Assistance, stated that “[s]oftware and simi-
lar intangible goods that would have been considered
articles, for the purposes of the Trade Act, if embodied in
a physical medium will now be considered to be articles
regardless of their method of transfer.” IBM Corporation
Global Services Division, Piscataway, NJ; Middletown,
NJ; Notice of Revised Determination on Remand, 71 FR
29183-01 (May 19, 2006). And as mentioned supra, the
Customs service holds that “[t]he fact that the importa-
tion of the merchandise via the Internet is not effected by
a more ‘traditional vehicle’ (e.g., transported on a vessel)
does not influence our determination.” HQ 114459 at 2.
To further illustrate, Congress rejected the distinction
the court creates, in the context of trade negotiations.
The recently enacted Bipartisan Congressional Trade
Priorities and Accountability Act of 2015 covers “digital
trade in goods and services” and states that “[t]he princi-
14 CLEARCORRECT OPERATING, LLC v. ITC
pal negotiating objectives of the United States . . . are . . .
to ensure that electronically delivered goods and services
receive no less favorable treatment under trade rules and
commitments than like products delivered in physical
form." Pub L. No. 114-26, § 102(a)(6) and (a)(6)(B)(i), 129
Stat. 320, 325 (2015).
Although various forms of wired and wireless trans-
mission have become commonplace, within nations and
across borders, the panel majority has locked the Interna-
tional Trade Commission into technological antiquity.
The court ignores precedent and logic, and removes a vast
body of technology from the protection of a statute de-
signed for its protection.
Difficulty of enforcement is not grounds for
discarding a remedial statute.
The court argues that violation of Section 337 by elec-
tronic transmission into the United States, such as via
the Internet or other cloud technologies, may be difficult
to track and enforce. This argument, whatever the pre-
sent state of science, cannot apply to the facts of this case,
for the electronically imported digital goods are produced
by the Pakistani affiliate of the United States importer,
who is subject to the Commission’s Cease-and-Desist
Order.
Cease-and-desist orders as a remedy for Section 337
violations are not new, including orders relating to in-
fringement by digital importation. See Hardware Logic
Emulation Systems, supra, at 3 (ordering that respondent
“shall not ... import (including electronically) into the
United States, or use, duplicate, transfer, or distribute by
electronic means or otherwise, within the United States,
hardware logic emulation software that constitutes cov-
ered product”).
Even if enforcement were difficult, difficulty of enforc-
ing a remedial statute is not grounds for judicial elimina-
CLEARCORRECT OPERATING, LLC v. ITC 15
tion of all remedy. See Bally/Midway Mfg. Co. v. Int’l
Trade Comm’n, 714 F.2d 1117, 1122 (Fed. Cir. 1983)
(rejecting the position that absence of remedy precludes a
finding of violation of Section 337). The court stated that
“Congress did not intend the Commission to consider
questions of remedy when the agency determines whether
there is a violation.” Id. at 1123.
My colleagues’ reliance on possible difficulty of en-
forcement against electronic transmission of infringing
digital data and related articles, although not at issue in
this case, merely adds imprecision to judicial guidance in
this commercially important area.
The Commission’s ruling requires judicial
deference in accordance with Chevron.
It is not disputed that the digital data sets and digital
models for teeth alignment, produced in Pakistan and
imported into the United States, infringe the patents of
Align Technology. The Commission recognized that this
technology is subject to Section 337. This ruling is a
reasonable statutory interpretation.
If Section 337 were deemed ambiguous as applied to
these fields of technology and commerce, the Commis-
sion’s well-reasoned interpretation, amid extensive cor-
roboratory rulings, is entitled to judicial deference. “[I]f
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.” Chevron U.S.A. Inc. v. Nat. Res. Def. Coun-
cil, Inc., 467 U.S. 837, 843 (1984). A permissible construc-
tion is one that is “rational and consistent with the
statute.” Sullivan v. Everhart, 494 U.S. 83, 88-89 (1990)
(quoting N.L.R.B. v. United Food & Commercial Workers
Union, Local 23, AFL-CIO, 484 U.S. 112, 123 (1987)). “If
the agency interpretation is not in conflict with the plain
language of the statute, deference is due.” Nat’l R.R.
16 CLEARCORRECT OPERATING, LLC v. ITC
Passenger Corp. v. Boston & Maine Corp., 503 U.S. 407,
417, (1992).
The rule of deference to the Commission’s reasonable
statutory interpretation has long been recognized by the
Federal Circuit. E.g., TianRui Grp. Co. v. Int’l Trade
Comm’n, 661 F.3d 1322, 1332 (Fed. Cir. 2011) (“We have
held that the Commission's reasonable interpretations of
section 337 are entitled to deference.”); Kinik Co. v. Int’l
Trade Comm’n., 362 F.3d 1359, 1363 (Fed. Cir. 2004) (“To
the extent that there is any uncertainty or ambiguity in
the interpretation of § 337(a) and its successor
§ 1337(a)(1)(B)(ii), deference must be given to the view of
the agency that is charged with its administration.”);
Enercon GmbH v. Int’l Trade Comm’n, 151 F.3d 1376,
1381 (Fed. Cir. 1998) (“As the agency charged with the
administration of section 337, the ITC is entitled to ap-
propriate deference to its interpretation of the statute.”).
“Congress cannot, and need not, draft a statute which
anticipates and provides for all possible circumstances in
which a general policy must be applied to a specific set of
facts. It properly leaves this task to the authorized agen-
cy.” Micron Tech., Inc. v. United States, 243 F.3d 1301,
1312 (Fed. Cir. 2001). To the extent that new technolo-
gies are involved in these infringing importations, defer-
ence is appropriate to the agency’s reasonable application
of the statute it is charged to administer. See Nat’l Cable
& Telecommunications Ass’n, Inc. v. Gulf Power Co., 534
U.S. 327, 339 (upholding agency interpretive authority
where the statute involved “technical, complex, and
dynamic” subject matter that “might be expected to evolve
in directions Congress knew it could not anticipate.”).
On any standard, the Commission’s determination is
reasonable, and warrants respect. The panel majority’s
contrary ruling is not reasonable, on any standard.
CLEARCORRECT OPERATING, LLC v. ITC 17
CONCLUSION
The Commission’s ruling is consistent with the lan-
guage, structure, and purpose of Section 337, and decades
of precedent concerned with digital data, electronic
transmission, and infringing importation. From the
court’s erroneous departure from statute and precedent, I
respectfully dissent.