The US Court of Appeals for the Federal Circuit affirmed a US
International Trade Commission (Commission) decision that found no
violation of Section 337 due to noninfringement. The Court
disagreed with the Commission that the use of present-tense claim
terms required actual operation to be shown to prove infringement,
but nevertheless affirmed the Commission's finding because
the patentee failed to establish that the accused products were
capable of carrying out the claimed functionality. INVT
SPE LLC v. ITC, Case No. 20-1903 (Fed. Cir. Aug. 31, 2022)
(Newman, Taranto, Chen, JJ.)
In 2018, INVT filed a complaint at the Commission alleging a
Section 337 violation by various cell phone companies. INVT
asserted that five of its patents were infringed by the 3G and LTE
networking standards used by mobile devices (such as cell phones)
to communicate with base stations (such as cell phone towers). INVT
withdrew two of the asserted patents during the course of
