The International Trade Commission (ITC) and Align Technology, Inc. (“Align”) have chosen not to seek Supreme Court review of the Federal Circuit’s decision in ClearCorrect v. ITC, which held that the ITC lacks jurisdiction to block the importation of electronically transmitted digital files that infringe U.S. intellectual property. The ITC and Align had until August 26, 2016, to file a petition for a writ of certiorari, but no petition was filed. Accordingly, the November 10, 2015 decision of the Federal Circuit three-judge panel remains in effect.

The ClearCorrect case is a Federal Circuit appeal of the Commission’s final determination in Certain Digital Models, Digital Data, and Treatment Plans for Use in Making Incremental Dental Positioning Adjustment Appliances, the Appliances Made Therefrom, and Methods of Making the Same, Inv. No. 337-TA-833 (“Digital Models”). In Digital Models, complainant Align asserted that electronically transmitted digital models of dental repositioning devices were “articles” subject to the ITC’s authority under 19 U.S.C. § 1337. On April 3, 2014, the Commission ruled that those digital models were “articles” within the ITC’s jurisdiction. On November 10, 2015, the Federal Circuit reversed the Commission’s decision, holding that the term “articles” was limited to “material things” and did not include electronically transmitted digital data.

This blog has published a number of articles regarding Digital Models and the ClearCorrect appeal, including articles discussing the background of Digital Models (available here); summarizing the Federal Circuit oral arguments (available here); reporting on the Commission’s final determination (available here); discussing the petitions for en banc review (available here); and discussing the denial of the petitions for en banc review (available here).

Align’s patent infringement lawsuit in district court against ClearCorrect, Align Technology, Inc. v. ClearCorrect Inc., 4:11-CV-00695 (S.D. Tex.), is expected to resume in the future.