During the August 11 oral argument in ClearCorrect v. ITC, the three-judge panel (Chief Judge Prost and Judges Newman and O’Malley) asked how the en banc Suprema opinion, which issued just one day earlier, should impact their decision. In yesterday’s response, ClearCorrect attempted to distinguish Suprema by arguing that it turned on the definition of “infringement,” unlike this case where the term “article” in Section 337 was under scrutiny. Further, ClearCorrect argued that Suprema implicitly supported ClearCorrect’s position that digital transmissions are not “articles” under Section 337 because the Suprema opinion only used the term “articles” in the beginning, and “almost immediately, the majority substitute[d] the term ‘goods’ for ‘articles.’”
Conversely, the ITC argued that Suprema only bolstered the notion that Chevron mandates deference to the ITC, and that the Tariff Act’s purpose is to curb all unfair trade practices.
The case will now be decided by the panel.