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Comcast Corp. v. International Trade Commission

Suprema Permits Exclusion of Articles Used in Consumers’ Induced Infringement

Comcast Corp. v. International Trade Commission, __ F.3d __, 2020 WL ___ (Fed. Cir. Mar. 2, 2020) (NEWMAN, Reyna, Hughes) (ITC) (3 of 5 stars)

Fed Cir affirms ITC determination of § 337 violations by Comcast for inducing its customers’ infringement of patents asserted by Rovi Corp. The patents relate to interactive television program guide systems accessible using a phone. The expiration of Rovi’s patents in mid-2019 did not moot this controversy, and the opinion finds it likely that ongoing ITC investigations involving unexpired Rovi patents will be affected by this appeal. Per Hyosung, 926 F.3d 1353 (Fed. Cir. 2019), such collateral consequences are sufficient to negate mootness.

The ITC did not err in determining that that certain set-top boxes, used in the infringement by Comcast’s customers, are “articles that infringe” in terms of Section 337. Although the boxes themselves do not practice Rovi’s claims at the time of importation, Section 337 still applies, per Suprema, 796 F.3d 1338 (Fed. Cir. 2015) (en banc). “It is undisputed that direct infringement of [Rovi’s] patents occurs when the imported X1 set-top boxes are fitted by or on behalf of Comcast and used with Comcast’s customers’ mobile devices. Reversible error has not been shown[.]” Op. at. 12.

Substantial evidence supported the ITC’s determination that Comcast is an “importer” of the infringing set-top boxes in section 337 terms. The opinion discusses how, although Comcast does not itself bring the boxes into the U.S., the boxes are heavily tailored to Comcast’s requirements and systems.

The ITC did not abuse its discretion in issuing a limited exclusion order not only against Comcast, but also Comcast’s co-respondents, who were the companies that did bring the set-top boxes in the U.S. at Comcast’s direction. Though the boxes did not infringe at the time of importation, the companies “were respondents in the investigation, and the exclusion order is limited to articles imported on behalf of Comcast. On these facts, the limited exclusion order is within the Commission’s discretion[.]” Op. at 15.

KEYWORDS: TARIFF ACT; SECTION 337; IMPORTATION; INDUCEMENT (YES)