CAFC Upholds ITC Exclusion Order in Rule 36 Judgment


“Man Controlling Trade” outside the ITC in DC, by NY sculptor Michael Lantz (1942).

The United States Court of Appeals recently issued a Rule 36 Summary Affirmance of the April 27, 2012 Final Determination of the International Trade Commission (hereinafter “Commission” or “ITC”) in In the Matter of Certain Ground Fault Circuit Interrupters and Products Containing Same. A Rule 36 judgment can be entered without an opinion when it is determined by the panel that any one of five conditions exist and a written opinion would not have precedential value.  See What is a Rule 36 Judgment?  The Federal Circuit judgment affirmed the Commission’s general exclusion order, “prohibiting the unlicensed importation of infringing ground fault circuit interrupters and products containing same,” inhibiting infringement on Leviton Manufacturing’s U.S. Patent No. 7,737,809.

The Commission instituted this particular investigation on October 8, 2010, based on a complaint and an amended complaint filed by Leviton Manufacturing Co., of Melville, New York (“Leviton”). The complaint and amended complaint alleged violations of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. § 1337), in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain ground fault circuit interrupters and products containing the same by reason of infringement of claims 1-7, 9-11, 13-17, 23-26, and 32-36 of U.S. Patent No. 7,463,124 (“the ’124 patent”); claims 1-11, 13-28, 30-59, 61-64, and 74-83 of U.S. Patent No. 7,737,809 (“the ’809 patent”); and claims 1-4 and 8 of U.S. Patent No. 7,764,151 (“the ’151 patent”).


Can the ITC Keep Pace?

Written by Brandon Baum,  of Baum Legal and Practice Center Contributor.

The ITC caseload has grown significantly in recent years.






Moreover, the Federal Circuit’s decision in Kyocera Wireless v. ITC limiting the downstream effect of ITC exclusion orders means complainants frequently name multiple parties when initiating complaints. Thus, the cases are far larger and more complex. The pace appears to be quickening as well, as there were 28 new 337 complaints filed between June and August, and the ITC website shows 71 cases currently pending. Many of these are “battle of the titans” type cases, involving major industry players with virtually unlimited legal budgets (e.g., various pending smartphone investigations are illustrated below). (more…)