The Court of Appeals for the Federal Circuit adopted changes to its Appellate Mediation Program Guidelines regarding: (1) confidentiality; and (2) settlements that include terms concerning vacatur of a district court ruling. Changes are as follows:
The Court of Appeals’ decision in Hitachi Home Electronics (America), Inc. v. United States “not only deprives importers of timely review of protests, but also allows Customs to block their access to judicial review,” said the American Association of Exporters and Importers (AAEI) in an amicus brief in support of Hitachi’s request for a Supreme Court hearing. Hitachi is appealing the October 2011 ruling of the Court of Appeals for the Federal Circuit that the statute does not require CBP to decide customs protests within two years, even though 19 USC 1515(a) says it “shall” do so.
Circuit Judge Richard Lynn of the Court of Appeals for the Federal Circuit announced his retirement from regular active service on CAFC on Nov. 1, and will assume senior status. Linn was on the CAFC for more than 12 years.
InterDigital appealed to the Court of Appeals for the Federal Circuit an International Trade Commission determination to terminate the Section 337 patent investigation of certain wireless devices with 3G capabilities and components thereof (337-TA-800) with respect to respondent LG. The ITC’s investigation is still pending, and completion is targeted for June 28, 2013. The ITC terminated the investigation with respect to LG on July 6 based on an arbitration clause in a license agreement, despite InterDigital’s opposition.
Hubbell Inc. filed an appeal of the International Trade Commission’s ruling in the section 337 patent investigation of certain ground fault circuit interrupters and products containing same, according to documents on the website of the Court of Appeals for the Federal Circuit. In May, the ITC issued a general exclusion order and cease and desist orders blocking imports of the merchandise at issue. Petitions for review of the ITC determination have also been filed by Leviton Manufacturing Co. (CAFC Docket No. 2012-1483) and by Fujian Hongan Electric Co., Ltd. and Zhejiang Trimone Science & Technology Electric Co., Ltd.(CAFC Docket No. 2012-1493).
Chances are slim that the Hitachi case on time limits for CBP protests will be taken up by the Supreme Court, say industry lawyers, and that is feeding a growing push for a legislative solution. In its decision, the Court of Appeals for the Federal Circuit said the statutory two-year period for CBP to decide protests isn’t binding. But the remedy CAFC said is available to importers, accelerated disposition, could hurt smaller importers without the resources to challenge a deemed denial in court, industry lawyers said. Furthermore, CBP itself could face adverse consequences as more importers file for accelerated disposition. As a result, industry groups and customs brokers have begun pushing for amendments to the statute that would hold CBP to a time limit.
The Fresh Garlic Producers Association (FGPA) filed an appeal of the Court of International Trade’s June 11 ruling in Jinxiang Hejia Co. v. United States, according to an Aug. 22 Court of Appeals for the Federal Circuit docketing notice. In the appealed ruling, CIT affirmed the zero AD rate assigned to Chinese plaintiff Jinxiang Heija Co. in the second remand redetermination of a new shipper review of the antidumping duty order on fresh garlic from China (A-570-831). The International Trade Administration originally assigned Jinxiang Hejia an AD rate of 15.37%. At issue in the decision was the ITA’s use of price data when calculating surrogate values.
In section 337 patent cases, the party attempting to establish that a patent is invalid because of prior invention bears the burden of proving the prior invention indeed came first, said the Court of Appeals for the Federal Circuit in reversing part of an International Trade Commission determination. According to CAFC, when the dates of conception or notification of the invention overlap, the tie goes to the complainant in validity determinations in section 337 cases.
The International Trade Administration must consider factors beyond scope language when including a product in an antidumping or countervailing duty order, said the Court of International Trade in a remand of an ITA scope determination. The ITA had ruled that plaintiff A.L. Patterson, Inc.’s steel coil rod falls within the scope of the antidumping duty order on certain steel threaded rod from China (A-570-932). In so doing, the ITA declined to consider Patterson’s evidence that (1) the original AD petition did not include steel coil rod; and (2) the ITA and International Trade Commission did not investigate dumped steel coil rod imports nor injury to domestic industry by such imports. The ITA said the language of the scope was unambiguous in its inclusion of steel coil rod, so it did not have to examine other factors. But CIT disagreed, and said if the ITA interpreted the scope to include a product then it is subject to interpretation. Therefore, said CIT, the ITA had to consider the other factors.
Hitachi Home Electronics (America) wants the U.S. Supreme Court to step in and strengthen a 42-year-old federal statute that bars CBP from dragging its feet on import duty protests, it said in a July 30 petition. Only the Supreme Court "can remedy the harm caused by the Federal Circuit's decision which affects all customs duty protests and, potentially, all imports into the United States," it said. "This case, containing no factual disputes, offers this Court a clean opportunity to examine the federal question of paramount importance raised in this case." Responses to Hitachi's Supreme Court request are due Aug. 31.