Section 337 Violation Based on Method Claim Requires Infringement at the Time of Importation

Following a hearing on remand, the ALJ found no violation of section 337 regarding complainants' data communication network patent. "In view of the Commission’s opinion in [Certain Electronic Devices with Image Processing Systems, Components Thereof and Associated Software, Inv. No. 337-TA-724], it is now apparent that [respondent] does not directly infringe the asserted claims 1 and 12 at the time of importation. . . . The Commission’s opinion in Electronic Devices holds that the practice of an asserted method claim within the United States after importation cannot serve as the basis for an exclusion order. . . . [I]n order to use an accused Xbox 360 system in an infringing manner, one must use the Xbox console in conjunction with a wireless accessory such as a Wireless controller. . . . [T]here is no evidence that Microsoft directly infringes asserted claims 1 or 12 at the time of importation."

Gaming and Entertainment Consoles, Related Software, and Components Thereof, 337-TA-752 (ITC April 1, 2013, Order) (Shaw, ALJ).