“Section 337’s ‘domestic industry’ requirement is the gatekeeper to the International Trade Commission’s unique remedy of an exclusion order. For a patent owner complainant to establish a domestic industry, the plain language of the statute requires a showing of certain ‘significant’ or ‘substantial’ domestic investments in ‘articles protected by’ its patent.”
“In the case below, the patent at issue claims a physical device, but for domestic industry purposes complainant relied solely on certain investments in its unpatented software—portions of which may be incorporated into a variety of different consumer products. The ITC found specific third-party televisions running such software to be the ‘articles protected by’ the patent, but wrongly (1) counted all of complainant’s domestic R&D and engineering investments in such software to be part of the domestic industry, and (2) found these investments to be ‘substantial’ under Section 337 without evaluating them ‘with respect to’ the ‘articles protected by’ the patent. The ITC then issued an exclusion order barring importation of certain of petitioner’s products, and the Federal Circuit affirmed.”
“The questions presented are:”
1. “Did the ITC exceed its Section 337 authority by finding the entirety of complainant’s investments in unpatented, multi-purpose software to be ‘with respect to the articles protected by the patent?’”
2. “Did the ITC exceed its Section 337 authority by failing to consider whether the complainant’s investments in unpatented, multi-purpose software were ‘substantial’ ‘with respect to the articles protected by the patent?’”
