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111010001: An Article of Commerce?

By Bryan Kohm and Stefan Szpajda
December 31, 2015

In ClearCorrect Operating, LLC v. ITC, No. 2014-1527, 2015 U.S. App. LEXIS 19558 (Fed. Cir. Nov. 10, 2015), the Federal Circuit limited the International Trade Commission's (ITC) jurisdiction over digital commerce. In a 2-1 decision, the panel held that the ITC lacks authority to regulate digital imports. (Note: Digital imports are limited to electronically transferred data, not digital data imported on physical medium, such as disks or drives.) Id . at 12. In light of the recent en banc decision in Suprema, Inc. v. ITC, 796 F.3d 1338 (Fed. Cir. 2015), the panel's decision is unlikely to be the final word on the issue.

The ITC Investigation

The Commission instituted the underlying investigation regarding whether ClearCorrect Operating, LLC and Clear Correct Pakistan (Private), Ltd. (collectively, “ClearCorrect”) infringed seven patents. ClearCorrect manufactures orthodontic appliances, known as aligners, by first creating a digital recreation of a patient's teeth in the United States and electronically transmitting the digital file to Pakistan. The file is used to create digital data models of tooth positions. ClearCorrect then electronically transmits the digital models to the United States, which are used to make aligners by thermoplastic molding.

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