The U.S. Court of Appeals for the Federal Circuit overturned an International Trade Commission decision to end a Section 337 patent investigation of infringement by LG so that the case could go to arbitration with patent holder InterDigital. LG had said it held a license for the patented technology at issue, and the commission found that a plausible basis for arbitration. Both the ITC and LG argued that the appeals court had no jurisdiction to hear the case, because termination for arbitration is not listed as subject to appeal under the governing statute, 19 USC 1337. But the appeals court found that termination of a Section 337 investigation for arbitration is in effect an appealable final determination, even though it isn’t enumerated in the statute. Turning to whether LG had grounds to request arbitration, the appeals court found that the portion of the agreement governing the license on 3G technology had expired, so LG had no right to assert a right to arbitration over the license.
The Commerce Department will take a look at allegations of fraud during the 2008-09 antidumping duty administrative review of frozen warmwater shrimp from China, after the Court of Appeals for the Federal Circuit granted the agency a remand. The case had been before CAFC on appeal from the Court of International Trade’s decision sustaining the 2008-09 final results in March 2012 (see 12040304). In the meantime, Commerce found respondent Hilltop International had committed fraud during the 2010-11 review (see 12083123). The Court of International Trade then expanded a remand of the 2009-10 review to see whether fraud also occurred during that proceeding (see 13011003). In ordering a remand of the 2008-09 final results, CAFC chose to follow the lower court’s lead.
The Court of Appeals for the Federal Circuit vacated and remanded a lower court decision affirming the non-individual separate rate calculated for Yangzhou Bestpak in the antidumping duty investigation on narrow woven ribbons with woven selvedge from China (A-570-952). The Commerce Department had assigned Yangzhou Bestpak an AD rate based on a simple average of the two mandatory respondents’ AD rates. One of the mandatory respondents had a de minimis AD rate, while the other had been assigned an adverse facts available rate because of noncooperation, which meant Yangzhou Bestpak’s simple average AD rate was half of the AFA rate, despite the company’s cooperation.
International Trade Today is providing readers with some of the top stories for May 13-17 in case they were missed.
The antidumping duty orders on ball bearings from Japan and the United Kingdom are set to be reinstated, after the Court of Appeals for the Federal Circuit decided May 16 to reverse several lower court rulings. The Court of International Trade remands had resulted in the International Trade Commission changing its affirmative injury determinations from its sunset reviews to negative ones. That led to revocation of the ball bearings orders for Japan and the U.K. in July 2011. But the appeals court said that, contrary to the lower court’s findings, the ITC injury findings were supported by record evidence, and should have stood.
The Court of International Trade vacated its August judgment against Nan Ya Plastics’ claim for funds under the Continued Dumping and Subsidy Offset Act (CDSOA, also known as the Byrd Amendment) (see 12071601). The court will now allow Nan Ya to file an amended complaint, in light of the Appeals Court’s July 2012 ruling in PS Chez Sidney v. International Trade Commission (see 12071604).
The Court of Appeals for the Federal Circuit affirmed the International Trade Commission’s determination that imports of Nintendo’s Wii video game system are not violating Section 337 by infringing on Motiva’s patents. The ITC had found that Motiva was not in the process of establishing a domestic industry. The company’s only activity related to the patents being a lawsuit against Nintendo. The court said the ITC’s determination was supported by the record -- Motiva was not close to developing a product that would utilize the patented technologies, and hadn’t been actively attempting to develop one for years. CAFC also pointed to Motiva’s decision not to ask for a preliminary injunction in its lawsuit, as well as the delay of three years between the launch of the Wii and Motiva’s ITC complaint, to show that Motiva’s owners had only filed the lawsuit for financial gain, not to clear the way for establishing an industry in the U.S.
International Trade Today is providing readers with some of the top stories for May 6-10 in case they were missed.
Boots without fasteners, designed to be pulled on with the hands, are “footwear of the slip-on type” for tariff classification purposes, said the Court of Appeals for the Federal Circuit in a May 8 decision. CAFC affirmed the Court of International Trade’s April 2012 ruling against Deckers Outdoor Corporation, which had argued its "Uggs" boots should instead be classified in a basket provision because “slip-on” refers to shoes not extending above the ankle.
The Court of Appeals for the Federal Circuit affirmed that certificates of origin for post-importation NAFTA claims are due within a year of the date of importation, but remanded for CBP to explain why it waives the one-year time limit for post-entry claims filed under its reconciliation program, but not for paper claims. As had the Court of International Trade in November 2011, the appeals court said 19 CFR 10.112, which allows for late submissions of supporting documentation for duty-free claims, doesn't apply to NAFTA post-importation refund claims.