CIT Orders CBP to Allow Entry of Coax Connectors Previously Found to Infringe Patents
The Court of International Trade ordered CBP to admit coaxial cable connectors imported by Corning Gilbert, but found by CBP to be subject to an International Trade Commission general exclusion order for patent infringement. Corning Gilbert was not a party to the ITC Section 337 investigation that resulted in the general exclusion order, and so the ITC never specifically found that the company’s connectors infringed the relevant patents. But CBP denied entry to Corning Gilbert’s connectors based on the exclusion order, and later issued a ruling letter confirming that the company’s connectors were to be refused entry. CIT found that CBP’s ruling letter was not entitled to deference because the agency didn’t adequately address the question of patent infringement. After examining the patent at issue and Corning Gilbert’s connector, CIT said the connector didn’t infringe the relevant patents and should not have been excluded.
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CBP refused entry to Corning Gilbert’s coaxial cable connectors based on a general exclusion order issued in the ITC’s Section 337 patent investigation of “certain coaxial cable connectors and components thereof and products containing same.” Corning Gilbert filed a protest with CBP, applied for further review, and requested a ruling on whether its connectors should be refused entry. In response, CBP issued ruling HQ H194336 (here). In the ruling, CBP headquarters found that the connectors were properly excluded from entry under the ITC’s general exclusion order, and told the Port Director to deny the protest.
The government said CBP’s ruling was entitled to deference by the court. CBP has a limited role in enforcing Section 337 cases, and can only apply ITC findings, as it did in the ruling at issue, the government said. Therefore, said the government, Corning Gilbert should have filed suit at the Court of Appeals for the Federal Circuit as a challenge of the ITC’s Section 337 determination, not at CIT to challenge a denied protest.
The court, however, said the ITC never directly found that Corning Gilbert’s connector infringed the relevant patents, because Corning Gilbert was not a party to the Section 337 investigation. Instead, CBP relied on an ITC finding of patent infringement by another manufacturer’s product. Therefore, there was no ITC finding that was directly applicable, and CBP should have undertaken a thorough analysis of whether Corning Gilbert’s connector in particular violated the patents covered by the general exclusion order, the court said.
The court also took the government to task for its argument that CBP can’t be expected to perform a comprehensive patent infringement analysis for every potentially excludable product within the 30-day period of protest review. “This argument implies … that Customs undertakes no analysis whatsoever until a protest is filed, which is after Customs has already made the decision to exclude,” CIT said. The period of protest review should be a time for CBP to develop an explanation of its reasoning, the court said, and not the first time CBP considers the issue of patent infringement.
After reviewing Corning Gilbert’s products, as well as the language of the patent claims, CIT found that the coaxial cable connectors do not infringe the patents related to the ITC’s general exclusion order, and should not have been refused entry by CBP.
(Corning Gilbert Inc. v. United States, Slip Op. 13-15, dated 02/01/13, Judge Gordon)
(Attorneys: Joseph Lavelle of DLA Piper for plaintiff Corning Gilbert; Amy Rubin for defendant U.S. government)