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ARTICLE · 01 DECEMBER 2015

Federal Circuit Panel Rejects ITC Assertion Of Authority Over Intangible Articles

McDermott Will & Emery
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Appellant ClearCorrect manufactures orthodontic aligners. In the United States, ClearCorrect would scan a patient's teeth and digitally recreate the tooth arrangement.

United StatesIntellectual Property
Christopher May
Christopher May
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ClearCorrect Operating, LLC et al. v. Int'l Trade Comm'n

Reviewing an interpretation by the U.S. International Trade Commission (ITC or Commission) of its enabling statute (§ 337 of the Tariff Act) for the second time in three months, a divided panel of the U.S. Court of Appeals for the Federal Circuit ruled that the term "articles" in § 337 is limited to tangible items, reversing the Commission's finding of jurisdiction over electronic transmissions entering the United States. ClearCorrect Operating, LLC et al. v. Int'l Trade Comm'n, Case No. 14-1527 (Fed. Cir., Nov. 10, 2015) (Prost, J.) (O'Malley, J., concurring) (Newman, J., dissenting).

Appellant ClearCorrect manufactures orthodontic aligners. In the United States, ClearCorrect would scan a patient's teeth and digitally recreate the tooth arrangement. The digital file was transmitted to Pakistan, where a new set of digital files of intermediate tooth positions was created. Those digital files were then

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