Nikon Corp. v. International Trade Commission

ON MOTION

RADER, Circuit Judge.

ORDER

Nikon Corporation et al. moves to dismiss ASML Holding N.V. et al.’s appeal. Nikon states that the International Trade Commission (ITC) joins in the motion. ASML responds and moves for leave to intervene. Nikon replies.

The ITC made a determination of no violation of 19 U.S.C. § 1337 by respondent ASML. Complainant Nikon appealed, 03-1378. ASML also appealed, 03-1400. In response to Nikon and the ITC’s motion to dismiss 03-1400, ASML states that it does not oppose the motion “if the Court allows ASML to intervene in Nikon’s appeal and it is understood that, as an intervenor, ASML may argue all grounds for sustaining the ITC’s ultimate determination of no violation.”

In Surface Technology, Inc. v. United States International Trade Commission, 780 F.2d 29, 30 (Fed.Cir.1985), the court held that where the ITC issues a finding of no violation, respondents “are without standing to appeal.” However, a respondent may intervene and participate in the complainant’s appeal and “may raise any claim in support of the ITC’s determination of no violation.” Id. at 31.

Accordingly,

IT IS ORDERED THAT:

(1) Nikon’s motion to dismiss 03-1400 is granted.

(2) ASML’s motion for leave to intervene in 03-1378 is granted.

(3) Each side shall bear its own costs in 03-1400.

(4) The revised official caption in 03-1378 is reflected above.