On Friday, February 14, 2014, the Commission filed a Combined Petition for Panel Rehearing and Rehearing En Banc in Suprema v. International Trade Commission, 2013 WL 6510929, Appeal No. 12-1170 (Fed. Cir. December 13, 2013). In Suprema, a split panel of the Federal Circuit made new law by vacating the exclusionary remedy in Certain Biometric Scanning Devices, Inv. No. 337-TA-720, and holding that "an exclusion order based on a violation of 19 U.S.C. §1337(a)(1)(B)(i) may not be predicated on a theory of induced infringement under 35 U.S.C. §271(b) where direct infringement does not occur until after importation of the articles the exclusion order would bar." The Commission’s Petition for rehearing makes four points in opposition to the split panel’s holding: (1) the panel’s holding that infringement under Section 271(b) “is untied to an article” contradicts Supreme Court precedent in Grokster and Federal Circuit precedent; (2) the panel’s holding that liability for induced infringement does not attach at the time of importation contradicts Supreme Court precedent inGrokster and Federal Circuit precedent in Standard Oil; (3) the panel’s holding ignores Congressional endorsement of the Commission’s interpretation of its statute and fails to give required deference to the Commission; and (4) the panel misinterpreted the Commission’s remedial orders. Amicus briefs are due in fourteen (14) days; and limited to ten (10) pages. There is no deadline for the Federal Circuit’s response to the Commission’s Petition.
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