Category: International Trade Commission - Exclusion Order

On Oct. 14, 2008, In the Kyocera case, the Court of Appeals for the Federal Circuit addressed the International Trade Commission's issuance of a limited (as compared to a “general”) exclusion order against the  importation of all downstream products containing imports of Qualcomm that it had determined infringed Broadcom’s U.S. Patent No. 6, 714,983.  The Federal Circuit vacated the exclusion order against the downstream products, holding that it was granted without authority. 

The ITC has issued a "limited" exclusionorder against products that infringed, including products of downstream manufacturers who, importantly, were not named as respondents.  The Federal Circuit held that a limited exclusion order was inappropriate and that to have an exclusion order against unnamed parties, the higher requirements of a "general" exclusion order had to be met.  Those are: when it is "necessary to prevent circumvention of an exclusion order limited to products of named persons" or when "there is a pattern of violation...and it is difficult to identify the source of infringing products."  Because a general exclusion order had not been issued, the limited exclusion order was vacated and the Commission was directed on remand to "reconsider its enforcement options."