Federal Circuit Rejects Google’s Bid To Shrink ITC Jurisdiction over Post-Importation Acts of Indirect Infringement

In the wake of the Supreme Court’s elimination of “Chevron deference” in the Loper decision, many commentators have suggested that the ITC’s authority over unfair imports under Section 337 might be curtailed. See Loper Bright Enterprises v. Raimondo, 2024 U.S. LEXIS 2882 (June 28, 2024). Most prominently, some have worried (or hoped, depending on their point of view), that the Federal Circuit’s decision in Suprema, which affirmed the ITC’s authority to find a Section 337 violation based on post-importation infringing activity, could be overturned.  See Suprema v. ITC, 796 F.2d 1338 (Fed. Cir. 2015) (en banc).

These concerns were not totally baseless, as the en banc decision in Suprema explicitly relied on Chevron in affirming the Commission’s interpretation of its statutory authority. 796 F.3d. at 1340-41 (“the Commission's interpretation of Section 337 is entitled to Chevron deference [and] is reasonable because it is consistent with Section 337 and Congress' mandate to the Commission to safeguard United States commercial interests at the border”). Indeed, earlier this summer, in a petition for re-hearing at the Federal Circuit, Google, a respondent in an ITC investigation (Inv. No. 337-TA-1191) teed up a challenge at the Federal Circuit to Suprema’s holding, in anticipation of the potential reversal of Chevron by the Supreme Court. See Sonos v. ITC, No. 22-1421, Dkt. No. 98 at 9 (arguing that “Suprema cannot survive” if Chevron is reversed). Google’s case involved similar facts to those present in Suprema, and Google argued that Section 337 violations should be interpreted narrowly to only address articles that infringe at the time of importation, and not infringing acts after importation. Id. at 10-13.

However, as the authors of this article previously noted, the Loper decision explicitly stated that prior decisions that relied on Chevron remain subject to statutory stare decisis. See Loper 2024 U.S. LEXIS 2882 at *60-61. So, with Google’s challenge, it remained uncertain whether the Federal Circuit would take Google’s invitation to reconsider Suprema, and if it did, whether it would reach a different result absent the Chevron framework of agency deference.

With this week’s ruling by the Federal Circuit, the wait is now over, and Suprema remains good law. On September 10th, the Federal Circuit denied Google’s petition for rehearing and rehearing en banc. Order on Petition for Rehearing En Banc, Fed. Cir. Case No. 22-1421 (Sept. 10, 2024). 

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