The ITC Continues its Crusade Against Non-Infringing Imports
In Beverage Dispensing Systems and Components Thereof (Inv. 1130), the ITC recently found a violation of Section 337 based on the domestic assembly of an infringing article using imported components. That investigation was part of a dispute between two global beer giants—Heineken and AB InBev—both of whom market individual beer taps that use specially-sized kegs. The asserted patent describes a “drink dispenser assembly” that includes, among other things, “a dispenser device . . . and a container . . . which has a coupling element.” ABI imported dispensers, containers, and couplers, which it assembled into a drink dispenser assembly in the United States.
In its March 26 Commission Opinion, the ITC found no relevance in the fact that the infringing article was made in the United States using non-infringing parts. Instead, the Commission dismissed such concerns by stating that “the Federal Circuit in Suprema . . . repudiated a time-of-importation requirement. See also Comcast.”
In Suprema v. ITC, the respondent created an infringing device in the United States when it added software to imported digital scanners. The Federal Circuit upheld the ITC’s interpretation of “articles that infringe” in Section 337 to include articles that only infringe after importation as a result of the seller’s inducement. And in Comcast v. ITC, the court approved the agency’s claim that a Section 337 violation requires only “importation of articles, proof of inducement, and proof of direct infringement” in order to exclude non-infringing cable boxes where the patent described using a smartphone app to schedule a DVR recording.
It’s possible the ITC’s decision in Beverage Dispensers was influenced by the minimal level of transformation that took place—respondents really just stuck three pieces of equipment together to make the infringing article. But the Commission Opinion doesn’t say whether that’s relevant or not. It simply claims that there is no time-of-importation requirement for “articles that infringe.” Without establishing limits that could be relevant in future investigations, we’re left with no guidance on how much connection there needs to be between the imported components and the infringement.
And there surely must need to be some connection. Can the ITC adjudicate patent disputes involving U.S.-manufactured products if they are made using imported nails and screws? If I induce infringement by sending people hand-made wood carvings, can the ITC block imports of the foam peanuts I stick in the box? If not, why not?