An exclusion order from the ITC based on a violation of 19 U.S.C. § 1337(a)(1)(B)(i) may 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.
Background / Facts: The patent here at the center of a limited exclusion order from the U.S. International Trade Commission (“the Commission”) relates to biometric fingerprint scanners. The accused devices are imported scanners which the patentee concedes do not directly infringe the method claims of the patent at the time of importation. The alleged infringement only takes place when the scanners are combined with domestically developed software after the scanners are imported. The patentee does not dispute that the scanners have substantial non-infringing uses, and the accused infringer contends its other customers have put them to such uses.
Issue(s): Whether a § 337(a)(1)(B)(i) violation may be predicated on a claim of induced infringement where the attendant direct infringement of the claimed method does not occur until post-importation.
Holding(s): Yes. “We conclude that because Section 337 does not answer the question before us, the Commission’s interpretation of Section 337 is entitled to Chevron deference. We hold that the Commission’s interpretation is reasonable because it is consistent with Section 337 and Congress’ mandate to the Commission to safeguard United States commercial interests at the border. … We hold that the Commission’s interpretation that the phrase ‘articles that infringe’ covers goods that were used by an importer to directly infringe post-importation as a result of the seller’s inducement is reasonable.“
SUBSEQUENT TREATMENT: SUPREMA, INC. v. ITC (Fed. Cir. 2015) (NP)