The USITC sided with Rovi against Comcast and barred importation of the set top boxes that Comcast uses for its X1 cable service. Comcast has now petitioned its case to the U.S. Supreme Court with three questions:
- Should the case be vacated as moot since the patents are now expired?United States v. Munsingwear, Inc., 340 U.S. 36 (1950).
- The statute focuses on “articles that . . . infringe.” Here, the accused set-top boxes themselves don’t infringe and are not infringing when imported. The infringement only occurs when used by customers. What gives?
- The ITC found that Comcast did not actually import the set top boxes, but should still be liable for “importation” of the boxes. What gives?
[Petition] The petition explains that the ITC’s approach here has shifted over the past few years:
The Commission has increasingly asserted authority over purely domestic patent infringement that is the province of Article III courts and juries. Here, the Commission issued an order banning importation of set-top boxes that are integral to Comcast’s X1 cable service, even though those boxes are staple articles of commerce that infringe no patents; the purported inducement and infringing uses occurred domestically after importation; and Comcast did not itself import the boxes.
Id. The petition repeatedly notes that ITC actions allow patentees “to evade limitations on injunctive relief in litigation” setup by the Supreme Court in eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006).
The petition repeatedly notes that ITC actions allow patentees “to evade limitations on injunctive relief in litigation” setup by the Supreme Court in eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006).
This is interesting. It looks like Comcast is trying to take advantage of a couple of recent trends at the Supreme Court. One is the Munsingwear vacatur-for-mootness thing that was at issue in the Trump travel ban litigation. (see argument I). There are reasons to think an exclusion order against Comcast is less important than an injunction against a presidential foreign-policy order, but maybe not.
The other trend is the recent wave of anti-administrative sentiment at the Supreme Court. This passage in particular looks to written for Justice Gorsuch:
The Commission’s jurisdictional overreach lacks any basis in the statutory text. No amount of judicial deference (which is unwarranted in any event) can justify it. It usurps the authority of Article III courts, to which Congress has entrusted principal authority to resolve domestic patent disputes. It allows patentholders to evade limitations on injunctive relief in litigation, see eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006), as the Commission vindicates infringement claims at a much higher rate than do the courts—and virtually always confers a permanent injunction.
Oh, boohoo Comcast. You knew exactly what you were / are doing.
Stop it.
Petition denied.
What gives?
Relieved to see that the above “What gives?” expressions are not in the actual Questions Presented.
I was hoping that the actual Questions Presented asked “WTF?”
The assertion of “staple items of commerce” seems…
Well, to be blunt, not true.
IIRC, the court below noted this explicitly.
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