The Federal Circuit’s decision Tuesday that the U.S. International Trade Commission cannot block importation of infringing digital files stymies plans by the movie and music industries to use the trade body to fight piracy, but the case is a strong candidate for en banc review, attorneys say.
On Tuesday, the Federal Circuit held that the ITC can only handle patent, copyright and trademark infringement cases involving “material things,” not digital files. (Credit: Law360)
While the case involved a company called ClearCorrect found to have used digital files to create patent-infringing versions of Invisalign clear braces, the case attracted the attention of Hollywood and others, who saw the ITC’s finding that it has authority over digital files as an opportunity to bring copyright suits at the commission against foreign websites with pirated content.
However, the Federal Circuit slammed the door on that potential strategy in a 2-1 ruling, reversing the ITC’s decision interpreting its jurisdiction and holding that the commission can only handle patent, copyright and trademark infringement cases involving “material things,” not digital files.
Since the ITC had only claimed authority over digital files last year, there hadn’t yet been any cases brought seeking to block infringing digital content. The Federal Circuit’s clear statement on the ITC’s jurisdiction means that unless the decision is overturned, the commission will not be in the anti-piracy business, even as more entertainment content is consumed in digital formats, attorneys say.
“The Federal Circuit is sort of drawing a line and saying the ITC cannot go into this area,” said Lee Carl Bromberg of McCarter & English LLP. “That will probably be of great importance as we go forward and more of this type of activity takes place.”
“It would not surprise me to see an en banc ruling that comes out in a parallel fashion to Suprema,” backing the ITC’s holding that it has authority over digital files, Bromberg said.