by
In 2012 the Department of Commerce issued an antidumping duty order, covering Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, from the People’s Republic of China. In 2014, Commerce initiated a requested review, limited to the two largest Chinese exporters of that merchandise by volume, Wuxi and Yingli, 19 U.S.C. 1677f-1(c)(2) . Commerce's Final Results calculated a weighted-average dumping margin for Yingli of 0.79%, based in part on its selection of surrogate values for each factor of production, including aluminum frames, and semi-finished polysilicon ingots and blocks. For aluminum frames, Commerce selected a value derived from import data based on Thai Harmonized Tariff Schedule Heading 7604 for “[a]luminum bars, rods[,] and profiles,” other than those specifically provided for in other subheadings at a comparable level, For semi-finished polysilicon ingots and blocks, Commerce selected the “world market price for polysilicon of $18.19 per kilogram.” SolarWorld sued, arguing that Commerce should have calculated a higher antidumping margin for Yingli and erred by undervaluing the surrogate values for Yingli’s inputs. The Trade Court and Federal Circuit affirmed Commerce’s final results of remand redetermination. Commerce’s selection of surrogate values for both aluminum frames and semi-finished polysilicon ingots and blocks is supported by substantial evidence and otherwise in accordance with law. View "SolarWorld Americas, Inc. v. United States" on Justia Law

by
Laerdal, which manufactures and distributes medical devices, filed a complaint at the International Trade Commission asserting violations of 19 U.S.C. 1337 by infringement of Laerdal’s patents, trademarks, trade dress, and copyrights by importing, selling for importation, or selling within the U.S. certain medical devices. The Commission investigated Laerdal’s trade dress claims, one patent claim, two copyright claims, and one trademark claim, excluding all others. Despite being served with notice, no respondent responded. An ALJ issued the Order to Show Cause. Respondents did not respond. An ALJ issued an initial determination finding all respondents in default. Laerdal modified its requested relief to immediate entry of limited exclusion orders and cease and desist orders. The Commission requested briefing on remedies, the public interest, and bonding. The Commission's final determination granted Laerdal limited exclusion orders against three respondents and a cease and desist order against one, based on patent and trademark claims; it issued no relief on trade dress and copyright claims, finding Laerdal’s allegations inadequate. As to trade dress claims, the Commission found that Laerdal failed to plead sufficiently that it suffered the requisite harm, the specific elements that constitute its trade dresses, and that its trade dresses were not functional; despite approving the ALJ’s initial determination of default and despite requesting supplemental briefing solely related remedy, the Commission issued no relief on those claims. The Federal Circuit vacated. The Commission violated 19 U.S.C. 1337(g)(1) by terminating the investigation and issuing no relief for its trade dress claims against defaulting respondents. View "Laerdal Medical Corp. v. International Trade Commission" on Justia Law

by
The 753 trademark, issued to Converse in 2013, describes the trade-dress configuration of three design elements on the midsole of Converse’s All Star shoes. Converse filed a complaint with the International Trade Commission (ITC), alleging violations of 19 U.S.C. 337 by various companies in the importation into the U.S., the sale for importation, and the sale within the U.S. after importation of shoes that infringe its trademark. The ITC found the registered mark invalid and that Converse could not establish the existence of common-law trademark rights, but nonetheless stated that various accused products would have infringed Converse’s mark if valid. The Federal Circuit vacated. The ITC erred in failing to distinguish between alleged infringers who began infringing before Converse obtained its trademark registration and those who began afterward. With respect to the pre-registration period, Converse, as the party asserting trade-dress protection, must establish that its mark had acquired secondary meaning before the first infringing use by each alleged infringer. In addition, the ITC applied the wrong legal standard in its determination of secondary meaning. On remand, the ITC should reassess the accused products to determine whether they are substantially similar to the mark in the infringement analysis. View "Converse, Inc. v. International Trade Commission" on Justia Law

by
Sigvaris imports graduated compression hosiery from three product lines. All of the product lines exert 15–20 millimeters of mercury (mmHg) of compression onto the wearer. Graduated compression hosiery “when properly worn, forces pooled blood to circulate out of the leg and throughout the body.” Between September 2008 and November 2010, Sigvaris imported 105 entries. Customs liquidated the entries between August 2009 and September 2011. Customs classified the subject merchandise as “[o]ther graduated compression hosiery: . . . [o]f synthetic fibers” under the Harmonized Tariff Schedule of the United States (HTSUS) subheading 6115.10.40 subject to a duty rate of 14.6%. The Trade Court held and the Federal Circuit affirmed that the merchandise does not qualify as duty-free under the HTSUS subheading 9817.00.96 as articles specially designed for the use or benefit of physically handicapped persons. The plain language of the heading focuses the inquiry on the “persons” for whose use and benefit the articles are “specially designed,” and not on any disorder that may incidentally afflict persons who use the subject merchandise. To be “specially designed,” the subject merchandise must be intended for the use or benefit of a specific class of persons to an extent greater than for the use or benefit of others. View "Sigvaris, Inc. v. United States" on Justia Law

by
The Director General of a Mexican government-owned corporation, Exportadora de Sal (ESSA), entered into a long-term, multimillion dollar contract with another Mexican corporation, Packsys, to sell the briny residue from its salt production process. Because the Director General did not have actual authority to execute the contract, ESSA invoked sovereign immunity when a suit was filed in the United States. The Ninth Circuit affirmed the district court's dismissal of Packsys's suit based on lack of jurisdiction. The panel declined to create a new rule that would extend the commercial activity exception to the Foreign Sovereign Immunities Act (FSIA) to embrace activities of a foreign agent having only apparent authority to engage in them. The panel also did not accept that principles of ratification or waiver improved Packsys's position. Therefore, ESSA properly invoked sovereign immunity under the FSIA. View "Packsys v. Exportadora de Sal" on Justia Law

by
The Ninth Circuit affirmed the district court's dismissal of an antitrust case based on the act of state doctrine. Plaintiffs alleged an antitrust conspiracy between a Mexican salt production corporation 51 percent owned by the government of Mexico and a Japanese entity that held the remaining ownership interest. The panel held that this case was fundamentally a challenge to the United Mexican States' determination about the exploitation of its own natural resources, made by a corporation owned and controlled by the Mexican government. The panel noted that this decision was not a license for courts to dismiss cases on act of state grounds whenever a foreign state-owned enterprise was involved. Rather, the panel held merely that on the facts of this case, application of the act of state doctrine was appropriate to preclude its consideration of the action. View "Sea Breeze Salt, Inc. v. Mitsubishi Corp." on Justia Law

by
The patent describes an ATM, capable of performing banking transactions, including “automatically depositing a bundle of cashes and cheques inserted at once” by separating deposited bundles into individual banknotes; verifying the authenticity or abnormality of each note; sorting and processing the notes based on how each was verified; and preparing the notes for storage safes. One component recited in each of the nine claims is a “cheque standby unit.” The specification does not mention a “cheque standby unit,” but references a “cheque temporary standby unit” in three portions of the detailed description. The International Trade Commission found that Diebold violated section 337 of the Tariff Act of 1930 by importing ATM components that infringe the claims, all of which recite the term “cheque standby unit.” The Federal Circuit reversed, finding that the term “cheque standby unit” is a means-plus-function term subject to 35 U.S.C. 112, para. 6, which lacks corresponding structure disclosed in the specification. The claimed function is “holding the at least one authentic cheque to return the at least one authentic cheque to the user responsive to receiving user instructions canceling depositing of the at least one authentic cheque.” A person of ordinary skill in the art would be unable to recognize the structure in the specification and associate it with the corresponding function in the claim. View "Diebold Nixdorf, Inc. v. International Trade Commission" on Justia Law

by
Gerson imports finished decorative candle and tea light lamps made of plastic and/or wax, designed to resemble ordinary candles, but using battery-operated LEDs, and serving both decorative and illuminative functions. Customs liquidated the merchandise under HTSUS subheading 9405.40.80, which imposes a duty rate of 3.9%, and reads: Lamps and lighting fittings including searchlights and spotlights and parts thereof, not elsewhere specified or included; illuminated signs, illuminated nameplates and the like, having a permanently fixed light source, and parts thereof not elsewhere specified or included: 40 Other electric lamps and lighting fittings. Gerson argued that it should have been classified under subheading 8543.70.70, which imposes a rate of 2%, and reads: Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: 70 Other machines and apparatus: 70 Electric luminescent lamps. The Federal Circuit affirmed judgment in favor of the government. Gerson’s reading would impermissibly expand the scope of heading 8543, unduly narrow the scope of heading 9405, and be inconsistent with the World Customs Organization’s Harmonized Commodity Description and Coding System Explanatory Notes, which suggest that chapter 94 is reserved for finished household lamps like Gerson’s candles, while chapter 85 is reserved for unfinished lamps used in conjunction with other electrical devices. View "Gerson Co. v. United States" on Justia Law

by
WesternGeco owns patents for a system used to survey the ocean floor. ION sold a competing system, built from components manufactured in the U.S., then shipped abroad for assembly into a system indistinguishable from WesternGeco’s. WesternGeco sued for patent infringement, 35 U.S.C. 271(f)(1) and (f)(2). The jury awarded WesternGeco royalties and lost profits under section 284. The Supreme Court reversed the Federal Circuit, holding that WesternGeco’s award for lost profits was a permissible domestic application of section 284 of the Patent Act, not an impermissible extraterritorial application of section 271. To determine whether the case involves a domestic application of the statute, courts must identify the statute’s "focus” and ask whether the conduct relevant to that focus occurred in U.S. territory. If so, the case involves a permissible domestic application of the statute. When determining the statute’s focus, the provision at issue must be assessed in concert with other provisions. Section 284, the general damages provision, focuses on “the infringement.” The “overriding purpose” is “complete compensation” for infringements. Section 271 identifies several ways that a patent can be infringed; to determine section 284’s focus in a given case, the type of infringement must be identified. Section 271(f)(2) was the basis for WesternGeco’s claim and damages. That provision regulates the domestic act of “suppl[ying] in or from the United States,” and vindicates domestic interests, The focus of section 284 in a case involving infringement under section 271(f)(2) is the act of exporting components from the U.S., so the relevant conduct occurred in the U.S. Damages are not the statutory focus but are merely the means by which the statute remedies infringements. The overseas events giving rise to the lost-profit damages here were merely incidental to the infringement. View "WesternGeco LLC v. ION Geophysical Corp." on Justia Law

by
If the International Trade Commission (ITC) determines that an article is being imported into the U.S. in such increased quantities as to be a substantial cause of serious injury or the threat thereof, to the competitive domestic industry, the President “shall take all appropriate and feasible action ... which the President determines will facilitate efforts by the domestic industry to make a positive adjustment to import competition and provide greater economic and social benefits than costs, 19 U.S.C. 2251(a). A U.S. manufacturer requested that the President protect U.S. solar manufacturers against foreign imports of crystalline silicon photovoltaic cells. The ITC made an affirmative serious injury determination; the Commissioners were divided with respect to relief. The ITC reported on imports from Canada under the NAFTA Implementation Act, finding that Canada contributed roughly 2% of the relevant imports during the applicable period. Imports from Canada declined in 2015-2016. ITC found that Canadian imports did not “contribute importantly” to the serious injury. In 2018, the President announced a four-year safeguard, including a 30- percent tariff on solar products, whether assembled as cells or modules; finding that imports from Canada accounted for a substantial share and contributed importantly to the serious injury or threat, he did not exempt Canadian imports. Canadian manufacturers and a U.S. importer filed suit. The Federal Circuit affirmed the denial of a preliminary injunction, holding that the President’s actions here were lawful, so there was no probability of success on the merits as required for a preliminary injunction. View "Silfab Solar, Inc. v. United States" on Justia Law