On August 11, the Federal Circuit heard oral argument in ClearCorrect Operating, LLC v. U.S. International Trade Comm’n, Appeal No. 14-1527. The case involved allegations by Align Technology, Inc. that digital data electronically transmitted from Pakistan to ClearCorrect in the United States infringed Align’s patents on a teeth straightening system. The Commission previously held that the digital data in such electronic transmissions were “articles” over which it possessed jurisdiction, found that transmission of such digital data violated Section 337, and issued a cease and desist order against such transmissions. Chief Judge Prost and Circuit Judges Newman and O’Malley presided over the oral argument at the Federal Circuit. Counsel for the Commission argued that the case involved the Commission’s exercise of jurisdiction only over “digital goods” that had a “physical counterpart,” not solely electronic transmissions. Thus, the broader question of jurisdiction over electronic transmissions without a physical counterpart should be addressed in a future case on different facts. Judge O’Malley noted this point and asked whether ClearCorrect was seeking to broaden the case. Judges Prost and O’Malley both asked whether a decision that electronic transmissions were outside the Commission’s jurisdiction would create a loophole in the statute, particularly for copyright infringement. Judges O’Malley and Newman also asked about Customs’ inability to enforce an exclusion order against electronic transmissions, noting that cease and desist orders typically supplement exclusion orders; they are not replacements for exclusion orders. Finally, Judge Prost asked about the amount of deference to which the Commission was entitled, citing the recent en banc decision of the Federal Circuit in Suprema, Inc. v. Int’l Trade Comm’n, Appeal No. 2012-1170, and ordered further briefing on the issue. A decision from the Federal Circuit is expected this fall.