In the Corning Gilbert Inc. v. U.S., importer asked the Court of International Trade for an opinion about Customs and Border Protection (CBP) role in enforcing decisions of other agencies. The specific issue concerned general exclusion order issued by International Trade Commission (ITC) in the patent infringement investigation for coaxial cable connectors. Exercising ITC’s authority under 19 U.S.C. § 337(d)(2)(a), the Commission directed CBP to exclude all unlicensed “coaxial cable connectors that infringe claim 1 and/or claim 2 of U.S. Patent 6,558,194.” Id. Since the patent in question has only two claims, the ITC’s decision essentially concerned the whole patent. Now here is the interesting part: when deciding whether or not to exclude the merchandise, can CBP rely on interpretations of the ITC, or should CBP make its own inquiry? In Corning Gilbert, CBP thought that reliance on ITC’s interpretation would suffice. The Court, however, disagreed and requested CBP to exercise its own discretion: “Customs may have to go beyond the mechanical application of the ITC’s Section 337. It may have to look at evidence and analyze whether the importer, particularly a non-party such as Corning Gilbert, has established non-infringement.” Id. This holding is significant in light of CBP’s peculiar role as…
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