United States Court of Appeals 

for the Federal Circuit ______________________

MAYBORN GROUP, LTD., MAYBORN USA, INC.,

Appellants

v.

INTERNATIONAL TRADE COMMISSION,

Appellee

______________________

2019-2077

______________________

Appeal from the United States International Trade 

Commission in Investigation No. 337-TA-1092.

______________________

Decided: July 16, 2020

______________________

JOHN STEPHEN GOETZ, Fish & Richardson P.C., New 

York, NY, for appellants. 

 ROBERT JOHN NEEDHAM, Office of General Counsel, 

United States International Trade Commission, Washington, DC, for appellee. Also represented by DOMINIC L.

BIANCHI, WAYNE W. HERRINGTON. 

 ______________________

Before LOURIE, LINN, and WALLACH, Circuit Judges.

LOURIE, Circuit Judge.

Case: 19-2077 Document: 38 Page: 1 Filed: 07/16/2020
2 MAYBORN GROUP, LTD. v. ITC

Mayborn Group, Ltd., and Mayborn USA, Inc., 

(collectively, “Mayborn”) appeal from a decision of the 

United States International Trade Commission (the 

“Commission”), denying its petition for rescission of a 

general exclusion order prohibiting importation of products 

that infringe U.S. Patent 8,028,850 (the “’850 patent”). 

Certain Self-Anchoring Beverage Containers, Inv. No. 337-

TA-1092, USITC Pub. 4984, 2019 WL 2174055, at *1 (May 

17, 2019) (Rescission Petition) (“Decision”). Because the 

Commission did not err in denying the petition, we affirm. 

BACKGROUND

The Complainants own the ’850 patent, which discloses

a self-anchoring beverage container that prevents spills by 

anchoring the container to a surface by means of a “flexible 

nonporous base member adapted to seal to a reference surface.” ’850 patent, Abstract. The seal is broken when the 

handle is lifted, and a user can move the container normally. Figure 1 illustrates an embodiment of the invention: 

J.A. 1338. As the details of the claims are not material to 

this decision, we omit them here. 

In 2017, Alfay Designs, Inc., Mighty Mug, Inc., and 

Harry Zimmerman (the “Complainants”), filed a complaint 

at the Commission against several respondents, not 

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MAYBORN GROUP, LTD. v. ITC 3

including Mayborn. The complaint alleged infringement of 

the ’850 patent, among others, and sought a general exclusion order (“GEO”) barring importation of infringing goods

by any party. 

The Commission instituted an investigation, and the 

administrative law judge initially determined that the two

remaining respondents—those with whom the Complainants had not settled—were in default and infringed claim 

1 of the ’850 patent. Certain Self-Anchoring Beverage Containers, Inv. No. 337-TA-1092, USITC Pub. 4984, 2018 WL 

4357626, at *2, *8–10 (Aug. 27, 2018) (Initial). The defaulting respondents did not raise any invalidity challenge. The 

ALJ also recommended that the Commission grant a GEO

because it was “difficult to gain information about the entities selling infringing self-anchoring beverage containers,” and numerous entities were importing self-anchoring 

beverage containers, making it “nearly impossible to identify the sources of the[] products.” Id. at *12. The Commission concluded that the ALJ’s finding of infringement was 

correct and issued the GEO. Certain Self-Anchoring Beverage Containers, Inv. No. 337-TA-1092, USITC Pub. 4984, 

2018 WL 6716888, at *3 (Dec. 18, 2018) (Final). 

The Complainants notified Mayborn of the Commission’s then-ongoing investigation in October 2018. Mayborn took no action during the course of the proceedings. 

In early 2019, the Complainants notified Mayborn and its 

retail partners that Mayborn’s products infringed the ’850 

patent in violation of the GEO. The Complainants also intimated that they were “working with special agents from 

[Customs & Border Protection (“CBP”)] in the enforcement 

of the [GEO] and in the identification of persons who are 

evading or violating the GEO.” J.A. 1857–58. 

In response, Mayborn petitioned the Commission to rescind its GEO pursuant to its power under 19 U.S.C. 

§ 1337(k)(1), which allows the Commission to rescind or 

modify an order if “the conditions which led to such 

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4 MAYBORN GROUP, LTD. v. ITC

exclusion from entry or order no longer exist.” Mayborn 

argued that this requirement was satisfied because it contends claim 1 of the ’850 patent is invalid under 35 U.S.C. 

§§ 102, 103. 

The Commission denied Mayborn’s petition, holding 

that a petitioner’s asserted discovery of invalidating prior 

art after the issuance of a GEO is not a changed condition 

under § 1337(k)(1). Decision, 2019 WL 2174055, at *2. 

This appeal, challenging the denial of the petition, followed. We have jurisdiction pursuant to 28 U.S.C. 

§ 1295(a)(6). 

DISCUSSION

Our review of the Commission’s final determination of 

a Section 337 violation is governed by the standards of the 

Administrative Procedure Act. 19 U.S.C. § 1337(c); 

Ajinomoto Co. v. Int’l Trade Comm’n, 597 F.3d 1267, 1272 

(Fed. Cir. 2010). Under 5 U.S.C. § 706, we review the Commission’s legal determinations de novo and its factual findings for substantial evidence. Converse, Inc. v. Int’l Trade 

Comm’n, 909 F.3d 1110, 1115 (Fed. Cir. 2018) (citing Cisco 

Sys., Inc. v. Int’l Trade Comm’n, 873 F.3d 1354, 1360–61 

(Fed. Cir. 2017)). Statutory interpretation is a question of 

law, generally reviewed de novo, Power Integrations, Inc. v.

Semiconductor Components Indus., LLC, 926 F.3d 1306,

1313–14 (Fed. Cir. 2019) (citing Unwired Planet, LLC v.

Google Inc., 841 F.3d 1376, 1379 (Fed. Cir. 2016)), but we 

review the Commission’s interpretation of § 1337 under the 

Chevron framework, Suprema, Inc. v. Int’l Trade Comm’n, 

796 F.3d 1338, 1345–46 (Fed. Cir. 2015) (en banc). 

Mayborn argues that the Commission erred in rejecting its petition for rescission, and the Commission contends

that Mayborn lacks standing to appeal the Commission’s 

denial of its petition. We first address the Commission’s 

argument. 

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MAYBORN GROUP, LTD. v. ITC 5

I. Standing

The Commission asserts that Mayborn lacks standing 

to appeal from the Commission’s decision because Mayborn 

continues to import the accused products and thus lacks 

the requisite injury. In the Commission’s view, Mayborn’s 

evidence of injury pertains to actions of the Complainants—insofar as they have threatened to enforce the GEO 

against Mayborn and its retail partners—and has nothing 

to do with the Commission or its decision not to rescind the 

GEO. 

Mayborn responds that it has been injured by the Complainants’ efforts to assert the GEO, specifically by losing 

revenue while retailers suspended sales of its products. It 

further maintains that the Complainants’ threat to seek 

enforcement of the GEO at the Commission creates a harm 

that is both imminent and real. 

We agree with Mayborn that it has standing to appeal. 

“[A]ny person” may petition the Commission for rescission 

or modification of an exclusion order, subject to certain conditions. 19 C.F.R. § 210.76(a)(1). Nonetheless, a party 

seeking judicial review of a Commission determination 

must establish that it presents a case or controversy for

which the federal courts have jurisdiction under Article III 

of the United States Constitution. See Phigenix, Inc. v. Immunogen, Inc., 845 F.3d 1168, 1171 (Fed. Cir. 2017) (citing 

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016); Hollingsworth v. Perry, 570 U.S. 693, 704 (2013)). A party has 

Article III standing to appeal from a decision of an administrative agency when it has: (1) suffered a particularized, 

concrete injury in fact that is (2) fairly traceable to the challenged conduct of the defendant and is (3) likely to be redressed by a favorable judicial decision. Spokeo, 136 S. Ct. 

at 1547; Consumer Watchdog v. Wis. Alumni Research 

Found., 753 F.3d 1258, 1261 (Fed. Cir. 2014). 

Mayborn has shown here that it satisfies these requirements and thus has Article III standing to maintain its 

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6 MAYBORN GROUP, LTD. v. ITC

appeal. First, Mayborn has shown that it has suffered an 

injury in fact as a result of the GEO. Mayborn imports 

products that potentially infringe the ’850 patent and 

therefore violate the GEO. As an initial matter, and contrary to the Commission’s arguments, it is unnecessary for 

the Commission to have already barred importation of 

Mayborn’s products for Mayborn to have standing to appeal the Commission’s decision. Cf. JTEKT Corp. v. GKN 

Automotive LTD., 898 F.3d 1217, 1220 (Fed. Cir. 2018) 

(holding that an inter partes review petitioner may appeal 

the Board’s decision on showing “that it is engaged or will 

likely engage ‘in an activity that would give rise to a possible infringement suit’” (quoting Consumer Watchdog, 753 

F.3d at 1262) (alteration omitted)). 

As the Commission acknowledges, Commission Br. 7, 

17, CBP may at any moment determine that Mayborn’s 

products violate the GEO and halt their importation.

§ 1337(d)(1). Mayborn understandably sees this, or an enforcement action by the Commission, as a real threat to its 

business. VastFame Camera, Ltd. v. Int’l Trade Comm’n, 

386 F.3d 1108, 1113, 1116 (Fed. Cir. 2004) (permitting the 

Commission to conduct enforcement proceedings). The

threat of injury is not merely conjectural, as Mayborn has 

lost sales and incurred costs stemming from the Complainants’ threats to assert the GEO, with attendant reputational injury, market share loss, and damage to Mayborn’s

brand and its relationships with retailers. Mayborn Opening Br. 13–17; Commission Br. 17; cf. E.I. DuPont de 

Nemours & Co. v. Synvina C.V., 904 F.3d 996, 1005 (Fed. 

Cir. 2018). Thus, given the strong possibility the Commission or CBP might act to enforce the GEO at any time and 

Complainants’ ongoing efforts to assert the GEO against 

Mayborn, Mayborn has alleged that the GEO has injured 

it in a “particularized” and “concrete” manner. 

The Commission’s chief argument is that this injury is 

not traceable to the Commission but instead to the Complainants. The Commission adds that the Complainants’ 

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MAYBORN GROUP, LTD. v. ITC 7

views concerning whether Mayborn’s products violate the 

GEO are irrelevant, as it is CBP and the Commission that 

decide whether to exclude specific products under a GEO. 

We disagree with the Commission on this point. Mayborn’s injuries stem from its risk of infringing the ’850 patent, the consequences of which are heightened by the 

existence of the GEO. See 19 C.F.R. § 12.39(b)(1) (the Commission “may direct” CBP to exclude products “violating or 

suspected of violating section 337”). The Complainants 

may have brought the GEO to the attention of Mayborn 

and its commercial partners, but it is the Commission that 

has issued the GEO, and it retains the ability to enforce, 

modify, or rescind it. See 19 U.S.C. § 1337(k)(1). Thus, 

Mayborn’s injuries may be fairly traced to the conduct of 

the Commission.

Finally, Mayborn’s injuries are likely redressable. The 

relief Mayborn seeks—an invalidity judgment and rescission of the GEO—would remove the threat of enforcement 

against Mayborn by CBP or in further proceedings at the 

Commission. We therefore conclude that Mayborn has Article III standing to appeal from the Commission’s decision. 

II. Merits

Mayborn argues that the Commission erred in holding 

that an invalidity challenge is not a proper basis for a petition for rescission or modification of an exclusion order under § 1337(k)(1). Mayborn also asserts that the 

Commission failed to heed its own regulation, 19 C.F.R. 

§ 210.76, by not considering the merits of its petition, and 

that the public interest lies in resolving patent validity. 

The Commission responds that Mayborn’s invalidity 

challenge is not a changed condition under § 1337(k)(1)—

unlike a subsequent final judgment of invalidity or license 

agreement between the affected parties—and the Commission therefore had no obligation to consider the substance 

of Mayborn’s petition. The Commission also maintains 

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8 MAYBORN GROUP, LTD. v. ITC

that it lacks statutory authority to consider an invalidity 

challenge outside of an investigation or enforcement proceeding, regardless of Mayborn’s insistence that the public 

interest generally lies in doing so.

Patent invalidity is an affirmative defense to an action 

for infringement in district court or before the Commission. 

35 U.S.C. § 282(b); see Guangdong Alison Hi-Tech Co. v. 

Int’l Trade Comm’n, 936 F.3d 1353, 1359 (Fed. Cir. 2019) 

(citing One-E-Way, Inc. v. Int’l Trade Comm’n, 859 F.3d 

1059, 1062 (Fed. Cir. 2017)). All factual propositions and 

inferences underlying an invalidity defense must be proven 

by clear and convincing evidence. Microsoft Corp. v. i4i 

Ltd. P’ship, 564 U.S. 91, 95 (2011). 

But we agree with the Commission and conclude that 

Mayborn’s invalidity challenge is not a permissible basis 

for it to petition for rescission or modification of the GEO. 

The Commission may only act pursuant to powers granted 

to it by Congress. See Kyocera Wireless Corp. v. Int’l Trade 

Comm’n, 545 F.3d 1340, 1355 (Fed. Cir. 2008) (“The ITC is 

a creature of statute, and must find authority for its actions 

in its enabling statute.”). Under § 1337(b), the Commission 

is empowered to investigate violations of § 1337(a), which 

prohibits, among other things, “the importation into the 

United States, the sale for importation, or the sale within 

the United States after importation” of articles that “infringe a valid and enforceable United States patent.” The

Commission is also permitted under § 1337(b) to conduct

proceedings to enforce an existing exclusion order. 

VastFame, 386 F.3d at 1113. The Commission may also 

rescind or modify an exclusion order when “the conditions 

which led to such exclusion . . . no longer exist,” or when a 

party previously adjudged in violation of § 1337(a) petitions 

for a “determination that the petitioner is no longer in violation of [Section 337].” 35 U.S.C. § 1337(k). 

The Commission correctly denied Mayborn’s petition

for two independent reasons. First, the Commission may 

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MAYBORN GROUP, LTD. v. ITC 9

only adjudicate patent validity when an invalidity defense 

is raised by a respondent in the course of an investigation 

or an enforcement proceeding pursuant to § 1337(b). That 

did not occur here as Mayborn was not a party to the proceeding. This court has carefully considered the Commission’s power to adjudicate patent validity, first granted to 

it by Congress in the Trade Act of 1974, Pub. L. No. 93-618, 

88 Stat. 1978 (1975), and we have long held that the Commission lacks authority to do so “when no defense of invalidity has been raised.” Lannom Mfg. Co. v. Int’l Trade 

Comm’n, 799 F.2d 1572, 1580 (Fed. Cir. 1986). In Lannom, 

this court explained that § 1337(c) was enacted to abrogate 

precedent that barred the Commission from addressing a 

respondent’s invalidity defense. Id. at 1576–79; see also 

§ 1337(c) (allowing a respondent to present “[a]ll legal and 

equitable defenses” in the course of an investigation authorized under § 1337(b)). Since Mayborn’s petition did not 

raise an invalidity defense in the course of an investigation 

or enforcement proceeding under § 1337(b), the Commission lacked the authority to adjudicate its invalidity challenge. 

Furthermore, subsection (k)(1) does not permit an endrun around this rule. 19 C.F.R. § 210.76(a)(1) interprets 

the statute to allow a person to petition for rescission or 

modification of an exclusion order when the person “believes that changed conditions of fact or law, or the public 

interest, require that an exclusion order . . . be modified or 

set aside.” A petitioner’s invalidity challenge is not, on its 

face, a changed condition under § 1337(k)(1) and is thus not 

a proper basis for a petition to rescind or modify an exclusion order. The ’850 patent has not been held to be invalid, 

which would indeed be a changed condition. 

While Mayborn argues that the “public interest” generally lies in “resolving questions of patent validity,” Mayborn Opening Br. 43–44 (quoting Cardinal Chem. Co. v. 

Morton Int’l, Inc., 508 U.S. 83, 100 (1993) (internal quotation marks omitted)), the “public interest” in § 210.76(a)(1) 

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10 MAYBORN GROUP, LTD. v. ITC

must be interpreted consistently with § 1337(k)(1), which 

only allows a petition that alleges changed conditions. Section 210.76(a)(1), consistent with § 1337(k)(1), thus requires a petitioner to show a change in the “public interest” 

conditions that led the Commission to issue the exclusion 

order in the first place. These public interest conditions 

are enumerated in Section 337 itself. Under § 1337(d)(1), 

the Commission must enter an exclusion order upon a finding of a violation “unless, after considering the effect of 

such exclusion upon the public health and welfare, competitive conditions in the United States economy, the production of like or directly competitive articles in the United 

States, and United States customers” the Commission concludes the articles should not be excluded. None of those 

conditions has been shown here. 

Here, as in many similar situations, the regulation’s 

invocation of the public interest does not grant the agency 

a “roving commission,” A.L.A. Schechter Poultry Corp. v. 

United States, 295 U.S. 495, 551 (1935) (Cardozo, J., concurring) (citation omitted), nor can it be interpreted to 

greatly expand the limited nature of the authority granted 

to the Commission in Section 337, see, e.g., Kyocera, 545 

F.3d at 1355. Mayborn did not argue in its petition that 

the public interest conditions listed in § 1337(d)(1) had 

changed since the Commission issued the GEO, and its contention that the public interest favors its invalidity challenge is therefore meritless. 

Mayborn also compares its invalidity challenge to the 

Commission’s practice of rescinding exclusion orders once 

the patent at issue has been found invalid or unpatentable, 

but its analogy is inapt. A patent claim is extinguished 

upon a final judgment of invalidity or a final decision of 

unpatentability, and “[i]t is well established that an injunction must be set aside when the legal basis for it has ceased 

to exist.” ePlus, Inc. v. Lawson Software, Inc., 789 F.3d 

1349, 1354 (Fed. Cir. 2015). The Commission’s practice is 

consistent with this principle and § 1337(k)(1), which 

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MAYBORN GROUP, LTD. v. ITC 11

allows rescission of an exclusion order upon a changed condition of law. In contrast, the legal status of the ’850 patent 

is unaffected by Mayborn’s wish to present an invalidity 

challenge. See Roper Corp. v. Litton Sys., Inc., 757 F.2d 

1266, 1270 (Fed. Cir. 1985) (“A patent is born valid. It remains valid until a challenger proves [its invalidity].”). 

CONCLUSION

We have considered the parties’ further arguments but 

find them unpersuasive. The decision of the Commission 

is 

AFFIRMED

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