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Full Fed. Circ. To Eye 'Loophole' In ITC's Authority

May 14, 2014

Fenwick patent litigation partner Darryl Woo was quoted by Law360 on the Federal Circuit granting en banc review of an earlier panel decision in favor of Woo’s clients. In that earlier decision, the International Trade Commission was held to lack authority to enter exclusion orders based on “induced” patent infringement where the underlying direct infringement took place only after importation.

"I don't read anything into the fact that the Federal Circuit agreed to hear it en banc," Woo told Law360. "Whenever the extent of an agency's authority is diminished by a court decision, it can be an issue."

Woo also said he would urge the court to reaffirm the earlier three-judge panel’s decision in Suprema Inc. et al. v. International Trade Commission. "The panel got it right," he said. "We think the statute is clear on its face in what it says and means."

In December 2013, a Fenwick team led by partner Darryl Woo obtained a landmark victory on behalf of Suprema limiting the statutory authority of the International Trade Commission to remedy indirect patent infringement. The Federal Circuit panel had ruled that Section 337 of the Tariff Act only allows the ITC to issue an exclusion order barring importation when products infringe at the time they enter the country. That decision vacated an earlier ITC exclusion order barring a limited category of imports of fingerprint scanners manufactured by Woo’s client, South Korea-based Suprema Inc.

The full article is available through the Law360 website (subscription required).​​