commission below determines that none of these products directly will contribute scanners three of the four combinations of scanners computers and software programs accused of infringing claim nineteen were found by the commission not to infringe on the common element is the scanners and that makes them the perfect example of the staple article of commerce you can add supremacy ganders to any customer software and the scanners will run the same way the commission in fact expressly found that the scanners were capable of substantial not infringing use the commission erred in finding that the supremacy stable article scanners are articles that infringe under three three seven as a commission itself has ruled three three your honor i agree with you that it's a trade statute the language of the trade statute that was written in terms of article that infringe not act that lead up to an infringement and to seventeen and article that in french are  are specially made for infringing infringement so that so while it that both statute three three seven and two seventy one addresses conduct and two they also are apples for committing to the one b infringement to write well i'm not saying that you cannot use an article if as part of your inducement of infringement all i'm saying is that under three three seven which is written expressly in terms of articles all to whatever articles you may or may not be importing or may or may not be selling to what do you think articles that range means that its outer limits and is out of them and does it cover an article seventy one language so obviously three three seven refers in some way or other to seventy one and and the question is whether the commission here has taken term articles that infringe that is not exactly what anything into seventy one says and given a reasonable translation of that shorthand into something into seventy one why is there a translation of of hundreds of course of long held that under to seventy that uses a phrase like it and extremely common shorthand infringing article articles that infringed to refer to either articles that play the is happening on the roll or that play a particular today which is whether or not under three three seven of article eleven friends language is an artist fable article that was only incidental to the inducement if at all connected to it can be an article that article here the scanners do not infringe either contributory leak or directly and the only infringement that is found is as to the combination of the addition of the scanners to a computer that runs software the software that actually does the method is on the computer not on the scanner and that is only run in the united states after importation if at all it is is or concealed it that three thirty seven doesn't use the word used that when an object sold before importation infringe under two seventy one any part of the seventy one act the time importation there's no making use sale or offer for sale reference in to seventy one b to anything but the conduct of inducing someone to infringe in fact you've been into someone's going friends without selling or a rigging or using any article at all you you can instruct somebody how to use something and that and then thereby do somebody to infringe what suppose then we had a situation in which there were instructions together with the hardware that exists here at the time of importation the article was com substantial mom infringing uses it seems to me in both of those instances it's true that the actual direct infringement doesn't occur to a leader but they are also situations in which by looking at the article itself without expensive evidence you can tell that there is or will be infringement where is this case is somewhat different in the sense that you have to look beyond the articles to determine whether there will be within play nineteen is done on the computer and that only have to we know what percentage of the in fourth of the hardware go to metal x and what percentage of other people i don't have that and figure it out and all i know is that dr it's common for statutes not to define every single term in the statute and this court using tools of standards tools of statutory construction can accurately and construe those turns on the face of the record without on the face of the statue without reference to which we take that road and we're using those tools dictionaries even going further and looking at other other statutes and arguing the construe terms in a contract or in the statutes and do that using the standard tools chevron their friends are only against only gets involved when one of the court is unable to do that function in this cave the court is able to statutory language it's in fact a runs counter to the statutory language which requires articles that infringe it as a limiting term not a descriptive one and the way that the commission wants to read the statute it actually eliminates that to include liability and article that that don't infringe on the will have encompassed to seventy one be expressive they could have done that they could have imported two seventy one meat and made reference to it they could have written isn't that where the ambiguity lie is or i said is is that not where the ambiguity lies congress could have also when they put it past a different it's a different stage of the different trade action because of also expressions said inducements but there was an additional requirement of substantial injury to us industry that was taken away and replaced with the importation of articles that were friends so so so that again this is an apples and oranges because i write yes you want to because the focus of the focus was changed from the actions of the of the actors to the article that was french and in its can totally consistent with the whole scheme of the part of three three seven which is to enforce the other customs and border protection agency how are they going to divine these are the hidden intents of of a person importing a stable article into the united states you could be the exclusion order in this case says that that the article then the french are excluded well if the exclusion order were written more precisely to say no discretion on customs our customs must allow and not exclude these designated items as long as the importer certifies the lack of any knowledge of downstream use to practice of that well i don't think that really helps us in this case you're going to because no one should ever make that certification because according to the commission's view they software was going to be manipulated in such a way that it would actually practice the math that is through our it that then with respect to this remedy concept that put you in a position where even if you certified truthfully you could be subject to contempt none of the products were marked so there's no way that the fact that a benefit any avoidance of the put the commission points to copying the patent features but but there was no copying of the patented features my client's products were found not to directly or contributory in friends they successfully their own search they found one pair of shoes patton didn't find the three four four didn't know about it but there was no reason to go any further why because they concluded correctly commission agree they didn't freeze the five six  to the five six to itself had they read the whole thing didn't mention the three for four pad only applications so why would you try to trace down an application on a pattern that you were but you already concluded you didn't infringe and then there's a temporal in a pos imported with the instructions telling you to infringe that that can be the subject rouge in order i do not see any cases of go beyond that and i believe that your description of the young and bake like involves massive claims and claims to a specific apparatus a cigarette holder and pipes sounds so there were actual apparatus claims that issue there the that may be but the point that you quote relates to trademark not correct i disagree my reading of the case may be different your honor but i think what the court was saying in bakelite was we have a patent owner shoes has a cause of action for the sale the pipe stems and cigarette holders in the united states but the appellant in that case argued that the mere importer shouldn't have to proceed against the sellers of those items so there should be a remedy that could occur at the border and the commission and then this court's predecessor adopted the reasoning in the supreme court's henry review versus a big if where there were that was a case that was relied upon the commission in the electronics devices case of those were the cause of the glowed in the dark and one of the assorted massive claims was activating the necklace so that it that your honor one of them relates to a question by judge toronto to my opponent earlier about whether in colloquial patent speak i think it was the term that was used to talk patent talk do we do we speak of articles used work or any inventor that is protected by an american patent can there be an unfair trade practice based on the importation of articles that infringes on the rights of that inventor and there can be in the commission is repeatedly wr opponent i think imagines that the adjudication of this case occurred at the time to the first scanner was imported and sitting on a dock in the united states before any other subsequent accident occurred but that's not why the commission instituted the investigation the commission instituted investigation based on a complaint a very detailed complaint that scanners were coming into united states that were being used to directly infringe a method that is something to which an inventor had a right in the united states and this trade practice was infringing on that inventors right but the commission are to have a ruling on the books said we don't do direct infringement of not the claims right the commission was very mindful that three section three three seven cannot extend the patent laws of the united states and so we weren't going to the commission was going to call something infringement that has judge lawyer recognized the district court would not call infringement so for example selling an article that may be used to perform a method is not infringement however selling an article that may be used to perform a method with the intent could someone in french someone else's mouth a claim that is an infringement and when that occurs the article used in that process is an infringement article  after importation it would be no different in a district court case it would be no defense for someone accused of inducement of infringement to come before the court and say i'm not liable because when i pulled this article to party times i mean you get it maybe i'm wrong with that it's completely within the discretion which i assume is unreviewable this question of the border patrol agent under procedures it establishes i don't know what those procedures are perhaps they're written somewhere to decide whether or not it wants to certify or not so am i misreading it that the border agent has a complete discretion to say i don't want to i don't want to certify forget it  any importer has goods turned away or the border how does a course of action they compile a customs protest that can be resolved either a customs or you told us before you referred to the fact that it's just comparable to district courts and i think one of the arguments decides the remedy in force is that an adversarial posture his decision her decision is reviewable three of us may be under abuse of discretion and i'm having a hard time seeing how the commission's implementation of this also concluded by saying they may be choir persons who provided the certification today to furnish records for analysis necessary to substantiate the certification does that include legal arguments or is response for the court is not to redefine what a violation of section three three seven may encompass but rather to revenge to the commission with further instructions to fashion the appropriate remedy don't you think it's important that three three seven uses the phrase articles that infringe it has a limited concept of use from time to seventy one a half and then you turn it to seventy one b it doesn't say that that your bad thoughts or your inducements are infringing act it says it creates a fiction and sounds once there's direct infringement you will be treated as an infringement that's very different than then  addressing that phrase and he says there was no intent for anything different kind of liability but to hold inducer as infringers so i don't see a distinction there i i also know  tortious interference of business relations through an importing trace that would require an intent element so that i don't see the mere fact that there is an intent element of this an unfair trade practice to be per se outside the scope of three three seven more importantly i think that congress understood that any trade practices that infringed upon the right of a patent for through importation where ther there is a legal process by which to follow that that protest now it's not the case that these type of protests arise only in the instance of an induced infringement correct those correct customs cutting for different kinds of electronic devices different kinds of pharmaceutical their photographs to inspect chemical they employ engineers they have an attorney so there is a whole system forstmann that place or they consult with the commission if there are questions about the scope of an order so that this process for issuing the exclusionary orders that goes all the way back to the could origins of of the of the need for the service that's correct and in this case your hon the commission gets a letter from customs if a shipment is turned away based on our exclusion order no shipments in three years that this order has been in place then turned away no one has tried to import the scanner for not infringing used and been tur hasn't happened the other point i would make in terms of him force when if he out one has a problem with the scope of the order they can come to the commission a can get an advisory opinion to say that this activity that we want to engage in is beyond the many respondents take advantage of them every day there are currently cases pending in the commission asking for advise on the scope of our orders a little bit let me give you a hypothetical suppose somebody imports a thousand bicycle bicycles himself stone and french but they could be combined with a particular kind of fire that would make the item infringing and that will depend on what happens at the time of the purchase does the commission claim that under those circumstances  exclusion order with respect to all the bicycles no because the commission to do that if a commission were to do that the commission would be extending the patent law because the scenario that you described would not constitute infringement someone selling a bicycle that is capable of substantial not infringing use is not infringement but if the bicycle that's true here that's the problem and knows what the difference here is intent here either there is there is an intent and a collaboration would render the whole thing in french and then you could exclude all the passion you could exclude the bicycles from that him for the one that had the intent to cause the infringement causing infringement even though that happens in some small number of cases if the bicycle seller intent and i don't think that's different even though it's a small number of cases there's a guy glued all the bicycles if that's what the because because the bicycle seller intends to infringe someone's hand right and when that one one way that it would be outside the scope of our borders or we are importing this for sale for use of some function that didn't cover the method steps of claiming one thing i want to clarify for judge doug that in the record eight two zero zero three commission is not going to interpret it statute in a way that would extend the united states and i'm not sure that i can say more than that i think that cases twelve minutes but i hope that in the absence of questions still if that thank you may please the court to the exclusion order in this case doesn't cover all scanners at all covers all infringing scanners and the distinction between the two would be no different than if an exclusion order was question is what is meant by articles that infringe the supreme as argument proves too much if that's merely limited to a specific device it's infringing you know itself i would fear that not only does it not comply with two seventy one b it doesn't comply with two seventy one c n it doesn't even comply with two seventy one eight which taxes liability to persons saw the commission is done here in effect in the congressional purpose of this statute was in translating what articles that infringe means to attach the sort of liability that's  j specifically found that mental x directly in french and tried to use the old now discarded next to stereotype and colored liability then the mission came up with this idea of inducing infringement on it so neither the par contract i disagree or honored to the extent the court is saying that certain like tronics of spices clarify would serve electronic devices make clear was that whatever nexus attaches or is appropriate for liability under at the time of importations know it so the status of the article at the time of importation but it also goes on to state of the statutory defined series of indirect indirect infringement appropriately reach activity without resorting to a concept of nex is a reference to status at the time of importation thus the infringement be a direct or indirect must be based on they refer to the concept of indirect but then they specifically talk about articles that have that have it talk about articles that relate to whether or not they have substantial non infringing uses or not and they specifically say where there's no substantial amount infringing uses that that kind of indirect infringement can meet this test of at the time  importation i respectfully disagree or honor it just like the supreme court said in grokster in the in this in the context of copyright it's not just the importation itself is distribution of a tool that's intended for importing use and if i that we're defining marbles in french in this enormously narrow manner and there's no way to logically distinguish contributory infringement there's no way to logically something illegal but benefits in the sense that if you use it in the contributory infringement situation where there are no substantial known infringing uses you can tell left from looking at the article and what you're saying here is that the commission has the authority to enter an exclusion  import of the commission is saying well in all of those cases even though the article itself may or may not agree we can grant a remedy that's not true your honor the solution orders limited to infringing articles and in this particular case the united states and those other ones where the small fry was by comparison so in this case it was the vast majority and in essence the good because service here about remedy distinct from violations are concerns that are appropriately delegated to the were the imports to men like for one percent no your honor i don't think it would make a difference just like those of the commission can even though ninety nine percent of the imports are not infringing they can bar the imports because one percent of them might be used as infringing man no not might be used they are only boring the ones that will be used as a practical matter the way that's handled this would be actual handling of the certifications that are done to be no different your honor that if somebody sued ten respondents found out a finding of infringement and got an exclusion order then ninety nine of them took licenses that exclusion order still applies in the still apply faithfully by the by the college for up to the remaining ones that remain fringing and the ninety percent that aren't would successfully come into this country subject to a certification and i with induced infringement call them the infringing software products and power integrations that this court called it the portion of infringing products not imported in the united states and later dynamics that talk about the no thank you my question because it's really important short i'm not sure that a higher standard like if i understand the courts question the interpretation that was applied as advocated by the supreme and for articles that infringe which excludes not merely induced infringement that would be contributory infringement it wouldn't exclude infringement of method of claims and it would arguably not covered the at the exclusion of an apparatus that's coming across the border because there is no infringement of the apparatus the apparatus arises from someone sells  if i understand of course question to the extent the question is just about whether it's a practical and forcible that's a separate question and one this person first before the court at the moment in question now is whether induced infringement constitutes a violation the prospective question about whether an exclusion y is appropriately enforceable etc is not the issue that's precisely before the court and certainly seems to me like one where the commission is due ample discretion in its actual implementation of the remedies that congress has given in order to enforce the intent what that said was that for statutory intellectual property rights we're going to strengthen the existing protections we're not going to make you show remedy because of activity by violating the statutory intellectual property rights we can assume injury and that's precisely the case  the statute have to do with finding a violation i believe that that phrase article that in france was intended to be at least coextensive if not broader than the definition of violation that sounded to seventy one a b and c indeed in order to determine whether an article infringes we have to look at the statute the patent act and determined that now the remaining portions of section three thirty seven have to do with the remedy in the remedial intent to congress in terms of the remedies that are available but is a totally distinction infringement case you have to have intimate before you can have induced infringement and in this particular case if it's true that all of these dinners that are a good portion of the scanners are being sold to medicine that there is a district court remedy i know i know you the states so for example while an injunction could issue against agreement to the expense of prima send those scanners to an independent third party distributor they would come in that way and to be clear supreme it hasn't killed us affiliate there is no you have entity th directly affiliated with supreme and indeed part of the benefits and practical benefit of section three thirty seven and this action had to do with the fact that we had been renters diction and we were able in that matter the people they're selling to are not allowed to use it right but these but the exact same thing so that the injunction issues against mentalism supreme and merely provide those same scanners to a separate distributor in the united states and the entire purpose of this statute was intended to be able to stop that at the border and in effect what the commission's opinion faithfully implies the text of section three thirty seven to implement congress intention to stop at the border all forms of infringement not just some forms including inducement the opinion should be a covered by the gap before two seventy one he existed and so when congress added to seventy one g s of the patent act that occurred about forty years after that same prohibition was applied in section three thirty seven three thirty seven isn't in ram or c you have to speak in terms of the articles it wouldn't make sense to be addressed just intellectual property and infringement by thinking in terms of the conduct and that is why th statute is ambiguous that is why it was necessary for the commission to apply its interpretive judgment they had to do i think that's what i'm getting at is if congress has a different set and i understand you have an argument contrary to the congress really hot intended only to conclude the converse is exactly the opposite of that your honor in three thirty seven a one b one in just the one says article that infringed b two is the provision from the one hundred forty the parallel to two seventy one g s if you an ambiguous means direct in front of some other way congress had that language in front of it when it was writing three thirty seven a one be won and if they had meant to say direct infringement only they could have simply said articles that are covered by important point i think it is commonplace in the section three thirty seven that the commissions in order to determine whether there's been a violation has to look outside of the article itself say for example the provision i just mentioned are products m in district court cases that's correct and it's not difficult to think of other circumstances where this would be true of my home and i hope you know i'm not talking about sort of you know glance of the article and you can tell whether it's infringing what i'm saying is doesn't suggest that an examination of the article or testing of the article or look at the history of the article suggests that it's going to be an infringement well that without looking for in tim the actions by the importer apart from intent i mean take business towards take anti trust file that takes passing off the commission have to determine intent and your question earlier about the scope of the of the exclusion order in this case paragraph one of the exclusion order to find the article that are excluded at the article that infringed so a sale by by the president to you know mark freeman associates is does not infringe because they have not been found to have engaged in an intentional scheme to induce direct infringement by me the final point i'm going to make is simply that article that infringes it had no means under section two seventy one and congress intended the commission in the first instance conduct from the patent loss to the article had to do that is the commission's judgment in the first incident how to do that and the only question ought to be whether it was reasonable of them to conclude that what congress meant was article that infringed or those for which liability could be imposed under the pretty focused on the question whether this not to seventy one question sites phrase articles that infringement fringing articles had any history  that in that sort of circumstance a district court can impose an injunction effect on the inducement against the importation and calculating remedies and we would talk as we did in the case of your honor mentions about you know how much per infringing article and that would be a perfectly reasonable and linguistically natural way to think of it and i think that linguistically reasonable given the relevance of the cases that you mention if only that the commission's conclusion here is consistent with the ordinary way in which we use the english language  difference if we conclude that is my statement about the case is correct i believe that is correct to my knowledge but once you once want to acknowledge that the importation of an article with instructions written on it about how to the agency if that is the situation and this court in this court is unable to use the standard tools of statutory construction to construe the statute well on that point maybe you can respond that mean the congress left it to the discretion of the commission to determine what articles infringes no your honor if it meant that that court can construe that statute just like just say the commission can there is no  decision that they cite to it has been in the context of either the pre eighty eight version of the statute or with the now discarded never put it to mean that you can bring an inducement to action under the thirty seven including g that runs counter to the statutory language of three thirty seven three three seven itself in a one b to specifically address the two seventy no standards have been turned away by custom since this decision has come down well but that's not before this court among other things some part of the record but even if it were true it's also consistent with the fact that as you might expect my find may be afraid to import article on the shelf you don't know whether somebody is going to use it in infringing manner or not that's why the district court talk about enjoying the conduct of inducement but not enjoying that sale the stable article and and  that what we're doing here what we have here is in the end be unity we don't know what it means in this court has been called on mark to determine what articles it infring c determination in this case is reasonable is its interpretation of the statute a reasonable interpretation and it is not a reasonable interpretation and i don't think we will be on the first step because  we look at i mean it we're faced with this issue all the time in this court in interpreting status of and when the first episode look at the statute and say does a statute answer the questions before us here we've been jumping from one to another we've discussed legislative our purpose we've discussed legislative history isn't it time to move on to the second step and that's where the nikkei she's interpretation of the statute is a reasonable one or not  specific place that out differently or separately from the general section that talks about unfair trade and talk specifically about article that in french and reading out the part that says that  which is based purely on conduct and not scattered to the importation of any infringing article the commission itself determined that sopranos products were staple article by saying they did it did not infringed when combined with three or four other software inappropriate and the commission itself says you must get and in determining whether or not there's been a three thirty seven violation you must satisfy all the statutory requirements of three thirty seven that is not done when when when when when all you're think it's not the the interpretation that reads out the phrase that infringing converts as limiting phrase into one that is not only not limiting but includes stable articles that are not infringing articles is it available mr software in conjunction with the stable article scanners this was purely domestic conduct that is not within the reach of three three seven three i want to clarify that the scanners at issue here are attached to a