Digital Data Sets Are “Articles” for Purposes of Section 337 ITC Investigations

The Commission affirmed the ALJ's finding that respondents' digital data sets electronically transmitted to the U.S. constituted an article of importation. "[Complainant's] infringement claims concern respondents' digital datasets and treatment plans representing the initial, intermediate, and final positions of patients' teeth for use in fabricating dental appliances for orthodontic treatment of individual patients. The Commission therefore must determine whether the phrase 'importation ... of articles' as used in Section 337(a)(1)(B) encompasses these digital data sets that are electronically transmitted into the United States. . . .'Articles' is not explicitly defined within Section 337. . . . [T]he Commission finds that the intended meaning of 'articles' encompasses such items as are bought and sold in commerce and that are imported into the United States, regardless of the mode of importation. . . . [T]he meaning of 'articles' is intended to encompass imported items of commerce as to which a finding of infringement of a patent, trademark, copyright or protected hull design may be sustained (provided that all other requirements of the statute are met). . . . [T]he fact that Customs enforces exclusion orders issued by the Commission by excluding from entry physical goods passing through U.S. ports does not limit our understanding of the scope of 'articles.'"

Digital Models, Digital Data, and Treatment Plans for Use in Making Incremental Dental Positioning Adjustment Appliances, the Appliances Made Therefrom, and Methods of Making the Same, 337-TA-833 (ITC April 9, 2014, Order)