NO ITC JURISDICTION OVER ELECTRONIC TRANSMISSIONS OF DATA

On Nov. 11, 2015, the Federal Circuit in a 2-1 decision held that that the USITC does not have jurisdiction under Section 337 to exclude electronic transmissions of digital data as they are not considered as "articles."  ClearCorrect scans physical models of patient's teeth, creates a digital recreation of initial tooth arrangement, and transmits the digital recreation to its subsidiary outside. The foreign subsidiary creates digital data models of intermediate tooth positions and transmits it back to ClearCorrect.  Align Technology alleged that ClearCorrect violated Section 337 by practicing its claimed methods abroad and importing the electronic data set to the U.S.  The commission granted an exclusion order finding that ClearCorrect's data transmissions were "articles."  In reversing the Commission's ruling, the Federal Circuit concluded that ITC lacked jurisdiction to exclude importation of electronic transmissions as the statutory language and congressional intent make clear that the jurisdiction is limited to "articles" that are material things and do not extend to digital transmissions.  Full text of the opinion is available here.