Argument Preview

One case being argued in March at the Federal Circuit attracted an amicus brief. That case is FS.COM Inc. v. International Trade Commission, a patent case. In this case, the Federal Circuit will review a determination by the ITC that Panduit Corp. and The Siemon Company infringed certain patents and The Siemon Company and Inc. infringed one patent. This is our argument preview.

The appellants in their opening brief first argue “[t]he Commission legally erred because Panduit and Siemon did not did not import any . . . articles that infringed the ’320, ’456, and ’153 patents, which are directed toward chassis assemblies.” The appellants assert this is because “[t]hey only imported modules—a component that is not even required by the ’320 patent, and is but one component out of several in the ’456 and ’153 patents.” Second, the appellants contend “[t]he Commission also legally erred by holding that expansive, open-ended range claims of the ’320 and ’456 patents that recite connection densities of ‘at least’ 98 or 144 connections were enabled.” Next, they argue “[t]he Commission also erred holding that Panduit and Siemon infringed the claims of the ’153 patent because it did not address its construction of ‘fiber optic routing element,’ which is limited to a precise configuration as confirmed by Corning’s own prosecution history disclaimer.” Finally, it asserts “the Commission erred in holding that Siemon and FS infringed the ’206 patent because it applied an improper construction of ‘front opening’ that allowed modules with multiple front openings to fall within the scope of the claims.”

In its response brief, the ITC first argues the Commission properly “found that Panduit’s and Siemon’s imported modules are ‘articles that infringe’ within the meaning of Section 337(a)(1)(B) and that Appellants’ inducing acts constitute a violation of Section 337.” Moreover, it asserts, “although Panduit’s and Siemon’s imported modules do not directly infringe the asserted apparatus claims and have noninfringing uses, the Commission properly found a Section 337 violation when Panduit and Siemon induced their customers to use the imported modules in combination with other components in the United States to directly infringe the asserted apparatus claims of the ’320, ’456, and ’153 patents.” Furthermore, the ITC contends “[t]he Commission also properly found that Appellants did not prove that the open-ended connection density limitations in the challenged claims of the ’320 and ‘456 patents are not enabled.” The ITC then finally argues “[s]ubstantial evidence also supports the Commission’s finding that Panduit’s and Siemon’s accused products include the ‘fiber optic routing element’ in the asserted claims of the ’153 patent.”

The appellants, in their reply brief, reassert the arguments they made in their opening brief. They argue “the Commission’s briefing on importation represents its most far-reaching position on jurisdiction in its history.” They also assert “[t]he Commission and Corning believe that Corning’s overbroad claiming should be excused based on the alleged existence of an inherent upper limit, an assertion that is highly dubious given that, even now, neither the Commission nor Corning unequivocally confirm what that supposed limit is.”

Corning filed its own brief as an intervenor arguing the Commission’s judgment should be affirmed.

Diversified Material Specialists, Inc. filed an amicus brief in favor of the appellants. The brief argues that “the asserted claims are undefined and overly broad, that the Commission erred in their enablement and infringement analysis, and that the court continuing to hold the asserted claims valid would stifle innovation across the entirety of the fiber optic industry to the sole benefit of Corning.”

This case will be argued on Friday, March 10. We will report on any developments.