Electronic Data Transmissions Are “Imported Articles” Under Section 337

Oct 9, 2014

Reading Time : 2 min

The complainant, Align Technology, Inc., asserted seven patents directed to creating digital models of a person’s teeth for dental correction. A U.S.­based respondent, ClearCorrect Operating, LLC (CCUS), transmitted images of a patient’s teeth to a foreign respondent, ClearCorrect Pakistan, Ltd. (CCPK). CCPK then created digital models of corrective braces for orthodontic treatment of the patient. Next, CCPK uploaded these models back to CCUS’s computers in the United States, where CCUS manufactured the braces for the patient. In the Initial Determination, ALJ Rogers found that the uploading of the digital models from Pakistan to computers within the U.S. constituted the importation into the United States of articles that infringed the asserted patents, thereby violating Section 337.The ITC considered whether the data transmission of these models into the U.S. was an “importation” of an “article” under Section 337(a)(1)(B). First, the Commission looked to the statutory language, which did not expressly define an “article.” However, the Commission noted that its previous decisions had refused to limit the term “article” (e.g., to “articles of foreign manufacture”) and determined that the statutory language did not restrict the scope of the “article” in any way. Next, the Commission looked to previous decisions of the United States Court of Appeals for the Federal Circuit and its predecessor court, which held that Section 337 should be broadly interpreted to prohibit unfair methods of competition in importation. Additionally, the Commission reasoned that the legislative history intended the statute to be flexible enough to prevent every form of unfair practice. Finally, the Commission looked at U.S. Customs and Border Protection and Department of Labor policies, which held that software was to be considered an “article” and the transmission of software into the U.S. constituted an “importation.”

In view of the foregoing, the Commission held that the intended meaning of “article” broadly covered any item bought and sold in commerce and imported into the U.S., regardless of the manner of importation. Accordingly, it affirmed the ALJ’s determination that “digital datasets” electronically transmitted into the United States were “imported articles” under Section 337(a)(1)(B). This decision may expand the scope of articles over which the ITC has jurisdiction to include electronically transmitted articles that may not enter the United States through Customs and Border Protection.

On June 5, 2014, the respondents filed a notice of appeal of the final determination of the Commission. The opening brief was filed under seal on October 9, 2014.

Certain Digital Models, Digital Data, and Treatment Plans, Inv. No. 337­TA­833, (USITC Apr. 10, 2014) (Commission Opinion).

Share This Insight

Previous Entries

IP Newsflash

September 25, 2025

In considering claims to a method of reducing cardiovascular events, the Federal Circuit held that the term a “clinically proven effective” amount did not render the claims patentable over the prior art. Specifically, the Federal Circuit held that the “clinically proven effective” amount, whether limiting or not, could not be used to distinguish the prior art because the claims also specified the exact amount of the drugs to be administered in the method. The Federal Circuit also rejected patentee’s evidence of unexpected results because that evidence was tied solely to the “clinically proven effective” limitation.

...

Read More

IP Newsflash

September 24, 2025

The Federal Circuit reversed a district court’s denial of judgment as a matter of law on non-infringement, thereby setting aside a $106 million jury verdict, after holding that prosecution history estoppel barred the patentee from asserting infringement under the doctrine of equivalents.

...

Read More

IP Newsflash

September 17, 2025

A magistrate judge in the District of Delaware issued a Report and Recommendation, that found the sole asserted claim was a “single means” claim and therefore invalid for lack of enablement. In reaching that conclusion, the magistrate judge rejected the patentee’s argument that the preamble of the claim disclosed a second element that satisfied the combination requirement of Section 112, paragraph 6 because the preamble simply recited a descriptor of the very apparatus that was the subject of the means-plus-function limitation in the body of the claim. The district court judge presiding over this case has scheduled a hearing to review the magistrate’s ruling.

...

Read More

IP Newsflash

September 9, 2025

The Federal Circuit has affirmed the PTAB’s determination that a patent challenger did not show the challenged claims were unpatentable for obviousness. The Federal Circuit concluded that substantial evidence, which included expert testimony, showed there was no motivation to combine the references.

...

Read More

IP Newsflash

August 29, 2025

In a recent order addressing four IPR proceedings, the PTAB exercised its inherent authority under 37 C.F.R. § 42.5(a) to sua sponte authorize post-hearing discovery on a potentially dispositive privity issue. The order followed a Director review decision that vacated and remanded earlier IPRs involving the same parties, patent family, and privity issue. 

...

Read More

IP Newsflash

August 29, 2025

The Patent Trial and Appeal Board denied institution of an inter partes review petition in part because it determined that a patent reference was not prior art under the common ownership exception of pre-AIA 35 U.S.C. § 103(c)(1).

...

Read More

IP Newsflash

August 11, 2025

In considering a motion to dismiss infringement claims for two related patents, the District of Massachusetts recently held that pre-suit knowledge of a “parent” patent, without more, is insufficient to establish pre-suit knowledge of the “child” patent for purposes of indirect and willful infringement.

...

Read More

IP Newsflash

August 8, 2025

Following a jury verdict finding trade secret misappropriation, the District Court for the District of Massachusetts granted-in-part a plaintiff’s motion for a permanent injunction to prohibit defendants from using plaintiff’s trade secrets. The district court further required defendants to reassign to plaintiff patents and patent applications that disclosed or were derived from plaintiff’s trade secrets as part of its equitable relief.

...

Read More

© 2025 Akin Gump Strauss Hauer & Feld LLP. All rights reserved. Attorney advertising. This document is distributed for informational use only; it does not constitute legal advice and should not be used as such. Prior results do not guarantee a similar outcome. Akin is the practicing name of Akin Gump LLP, a New York limited liability partnership authorized and regulated by the Solicitors Regulation Authority under number 267321. A list of the partners is available for inspection at Eighth Floor, Ten Bishops Square, London E1 6EG. For more information about Akin Gump LLP, Akin Gump Strauss Hauer & Feld LLP and other associated entities under which the Akin Gump network operates worldwide, please see our Legal Notices page.