CAFC concludes a § 337(a)(1)(B)(i) violation may not be predicated on a theory of induced infringement in these circumstances
We vacate the cease and desist order, vacate the limited exclusion order in part, and remand so that the order can be revised to bar only a subset of the scanners at issue. Resolution of this appeal turns in part on our conclusion that an exclusion order based on a violation of 19 U.S.C. § 1337(a)(1)(B)(i) may not be predicated on a theory of induced infringement under 35 U.S.C. § 271(b) where direct infringement does not occur until after importation of the articles the exclusion order would bar. The Com- mission’s authority under § 1337(a)(1)(B)(i) reaches “articles that . . . infringe a valid and enforceable United States patent” at the time of importation. Because there can be no induced infringement unless there has been an act of direct infringement, however, there are no “arti- cles . . . that infringe” at the time of importation when direct infringement has yet to occur. The Commission’s exclusion order must be revised, accordingly, to bar only those articles that infringe a claim or claims of an assert- ed patent at the time of importation.