CAFC Withdraws Criticism of ITC's Removal of Issues from Judicial Review in Patent Cases
The Court of Appeals for the Federal Circuit withdrew the portion of its February ruling in General Electric v. International Trade Commission that criticized the ITC’s removal of certain issues from judicial review in Section 337 patent proceedings. In its February ruling, CAFC had said the ITC’s practice of giving notice it would review an aspect of an administrative law judge’s determination, and then taking “no position” on that particular aspect of the determination, did not entitle the ITC to remove an issue from judicial review. The ITC had justified this practice by saying that taking no position on an issue removes an issue from judicial review because in such cases the agency ruling is not final. However, CAFC had said in its February ruling that taking no position on an issue is the same as not reviewing the issue and adopting as final, and subject to judicial review, the ALJ’s determination. Consequently, CAFC in February remanded the issues that the commission had taken no position on, namely infringement and validity of a patent that was covered in the ITC’s investigation in certain variable speed wind turbines and components thereof (337-TA-641).
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However, on June 6 CAFC granted the ITC’s petition for panel rehearing for the case for the purpose of withdrawing Part III of the February opinion, which was the part that contained CAFC’s remand of the issues that the ITC had taken no position on in its review. CAFC said it now takes no position on the issue, which “may arise in a future case,” and reissued the February opinion that now contained only Parts I and II.
Judge Dissents, Says This CAFC Ruling Impedes Resolution of ITC Proceedings
Judge Newman dissented from the ITC’s decision to withdraw Part III of the opinion. By granting the ITC’s request for rehearing, Newman said, CAFC “ratifies the Commission’s authority to negate the finality of these final decisions, thereby forestalling judicial review and impeding the expeditious resolution of ITC proceedings, as required by statute and as the Commission represents to the public.”
According to Newman, “no provision of Section 337 or the Administrative Procedure Act authorizes the ITC to bar the routine judicial review of issues that were fully tried and finally decided by the ALJ and not reviewed by the full Commission.” In addition, referencing the July 2008 final rule that the ITC argued gives it the ability to make “no decision” on and issue and remove the issue from judicial review, Newman said that “the concerned communities were not told that the Commission intended, by this amendment, to authorize itself to remove finally decided issues from access to the judicial review provided in 19 USC 1337(c). Such a bombshell would surely have occasioned comment.”
“Instead of setting the inquiry aside for ‘a later case,’ the issue of statutory compliance requires resolution,” concluded Newman.
Reissued opinion in General Electric v. ITC (dated 07/06/12) available here.