On December 13, the Federal Circuit issued a split panel Opinion in Suprema v. ITC, Appeal No. 2012-1170, 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 majority (Judges Frost and O’Malley) found “that Section 337(a)(1)(B)(i), by tying the Commission’s authority to the importation, sale for importation, or sale within the U.S. after importation of articles that infringe a valid and enforceable U.S. patent, leaves the Commission powerless to remedy acts of induced infringement in these circumstances.”  In Dissent, Judge Reyna argued, inter alia:  (i) “Section 337 is a trade statute designed to provide relief from specific acts of unfair trade, including acts that lead to the importation of articles that will result in harm to a domestic industry by virtue of infringement”; (ii) for decades, the Commission has found Section 337 violations based on induced infringement, where infringement did not occur until after importation; and (iii) the Federal Circuit recently recognized en banc in Akamai v. Limelight, 692 F.3d 1301 that there is no reason to immunize an inducer from liability “simply because the parties have structured their conduct so that no single defendant has committed” direct infringement.