The Federal Circuit’s recent decision in General Electric Co. v. Int’l Trade Comm’n, No. 2010-1223 (Feb. 29, 2012) vindicates the right of a losing party to appeal any issue noticed for review by the International Trade Commission, regardless of whether the Commission actually decides the issue in its Final Determination.
The General Electric investigation originated when General Electric Co. filed a complaint with the Commission under Section 337, accusing Mitsubishi Heavy Industries, Ltd. and Mitsubishi Power Systems Americas, Inc. of infringing three GE patents for wind turbine technology, including U.S. Patent No. 6,921,985 (“the ‘985 patent”). The investigation proceeded and the Administrative Law Judge found that Mitsubishi infringed all three patents; that none of the three patents were invalid or unenforceable; that GE had a domestic industry with respect to two of the three patents, including the ‘985 patent; and there was a violation of Section 337. The parties petitioned the Commission for review of the ALJ’s decision and the Commission issued a Notice of Review, indicating it would review all issues in the ALJ’s decision, except importation and the “intent” prong of an inequitable conduct defense. However, upon completing its review, with regard to the ‘985 patent, the Commission addressed only the issue of whether GE met the technical prong of the domestic industry requirement, i.e., whether GE practiced the ‘985 patent, and determined that GE’s products did not. The Commission reversed the ALJ’s determination, and found there was no violation of Section 337. The Commission took no position on the other issues it had previously indicated were subject to review.
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