Thursday, January 10, 2013

Judge Newman dissents in Interdigital 337 case

The dissent is the longer portion of the decision in INTERDIGITAL COMMUNICATIONS, LLC v. ITC.

The dissent begins:

Nokia requests rehearing, and again raises the question of whether InterDigital has the statutory right to bring this exclusion action, for InterDigital does not manufacture the patented invention in the United States, and no domestic industry produces the items for which exclusion is sought.

Of the 1988 amendments:

The purpose of the 1988 amendments to Section 337 was to permit patentees that do not themselves manufacture their patented products, such as universities and others that perform research or engineering, to have access to the Section 337 remedy. The 1988 amendments did not remove the requirement that "articles protected by the patent" must be produced in the United States; the amendments were designed to enlarge the incentive for domestic production, not to eliminate it.

From the conclusion of Judge Newman's dissent:

My colleagues depart from the statutory text and purpose, in holding that the statutory requirement of domestic industry does not require domestic manufacture. Rehearing Op. 14 n.4. The statute says, twice, that there must be “articles protected by the patent,” §1337(a)(2), (a)(3), whether produced by the patentee, or under license from the patentee. The domestic industry requirement is not met by foreign manufactures. That is the issue requiring judicial attention. From the panel’s denial of the petition for rehear- ing, I respectfully dissent.


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