United States Court of Appeals 

for the Federal Circuit ______________________ 

DBN HOLDING, INC., BDN LLC,

Appellants

v.

INTERNATIONAL TRADE COMMISSION,

Appellee

______________________ 

2020-2342

______________________ 

Appeal from the United States International Trade 

Commission in Investigation No. 337-TA-854.

______________________ 

Decided: March 1, 2022

______________________ 

STACY O. STITHAM, Brann & Isaacson, Lewiston, ME, 

argued for appellants. Also represented by PETER J.

BRANN, DAVID SWETNAM-BURLAND. 

 WAYNE W. HERRINGTON, Office of the General Counsel, 

International Trade Commission, Washington, DC, argued 

for appellee. Also represented by DOMINIC L. BIANCHI,

CLINT A. GERDINE. 

 ______________________ 

Before MOORE, Chief Judge, NEWMAN and REYNA, Circuit 

Judges.

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2 DBN HOLDING, INC. v. ITC

REYNA, Circuit Judge. 

DBN Holding, Inc. and BDN LLC appeal the U.S. International Trade Commission’s remand determination 

denying their petition to rescind or modify the civil penalty 

imposed by the International Trade Commission for violations of a consent order. In a prior appeal, we instructed 

the International Trade Commission to assess on remand 

“whether to modify or rescind the civil penalty pursuant to 

19 C.F.R. § 210.76 based on the final judgment of invalidity” of the patent asserted in the underlying Section 3371

investigation.2 DBN Holding, Inc. v. Int’l Trade Comm’n, 

755 F. App’x 993, 998 (Fed. Cir. 2018) (non-precedential). 

On remand, the International Trade Commission determined that the civil penalty did not require modification or 

rescission and therefore denied the petition. Because we 

discern no abuse of discretion in the International Trade 

Commission’s determination, we affirm. 

BACKGROUND3

This is the fourth appeal relating to this case that has 

come to our court. See DeLorme Publ’g Co. v. BriarTek IP, 

Inc., 622 F. App’x 912, 913 (Fed. Cir. 2015) (non-precedential) (“DBN I”); DeLorme Publ’g Co. v. Int’l Trade Comm’n, 

805 F.3d 1328, 1330 (Fed. Cir. 2015) (“DBN II”); DBN 

Holding, Inc. v. Int’l Trade Comm’n, 755 F. App’x 993, 994 

(Fed. Cir. 2018) (non-precedential) (“DBN III”). Given this 

lineage, we do not repeat the extensive background information from those prior appeals, and we focus on those 

1 19 U.S.C. § 1337. 2 Inv. No. 337-TA-854.

3 We refer to the appellants and their predecessors 

in interest collectively as “DBN.” Appellant DBN Holding, 

Inc. was formerly known as DeLorme Publishing Company, Inc. Appellant BDN LLC was formerly known as DeLorme InReach LLC.

Case: 20-2342 Document: 39 Page: 2 Filed: 03/01/2022
DBN HOLDING, INC. v. ITC 3

background and procedural details necessary for us to review and resolve this appeal. 

On November 12, 2015, we issued both DBN I and 

DBN II. In DBN I, we affirmed the Eastern District of Virginia’s grant of summary judgment invalidating the same 

patent claims that patent owner BriarTek IP, Inc. (“BriarTek”) had asserted against DBN in a parallel investigation before the U.S. International Trade Commission 

(“ITC”) under Section 337. See DBN I, 622 F. App’x at 913 

(affirming invalidation of claims 1, 2, 5–12, 17, 34, and 35

of U.S. Patent No. 7,991,380); see also DBN II, 805 F.3d 

at 1333 (listing claims 1, 2, 5, 10–12, and 34 as asserted 

claims in the ITC investigation). In DBN II, we held that 

(1) the ITC did not abuse its discretion in imposing on DBN 

a $6,242,500 civil penalty for violating the consent order4

4 The consent order stated as follows:

1. Upon entry of the proposed Consent Order, 

[DBN] shall not import into the United States, sell 

for importation into the United States, or sell or offer for sale within the United States after importation any two-way global satellite communication 

devices, system, and components thereof, that infringe claims 1, 2, 5, 10–12, and 34 of the ’380 Patent after April 1, 2013, until the expiration, 

invalidation, and/or unenforceability of the ’380 Patent.

2. [DBN] shall be precluded from seeking judicial 

review or otherwise challenging or contesting the 

validity of this Consent Order. . . .

4. The Consent Order shall not apply with respect 

to any claim of any intellectual property right that 

has expired or been found or adjudicated invalid or 

unenforceable by the [ITC] or a court or agency of 

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4 DBN HOLDING, INC. v. ITC

DBN signed in order to terminate the ITC investigation, 

and that (2) our affirmance in DBN I of the district court’s 

invalidation of the asserted claims did not negate—under 

the consent order’s unambiguous terms—DBN’s pre-invalidation violations of the consent order. 805 F.3d 

at 1333–34. 

On December 22, 2015, DBN filed a petition before the 

ITC under 19 C.F.R. § 210.76 seeking to rescind or modify 

the civil penalty order issued by the ITC against DBN for 

violating the consent order. J.A. 721–31. DBN argued in 

its petition that the civil penalty order should be set aside 

or modified because the patent claims asserted in the Section 337 investigation were found by a district court to be 

invalid in a decision subsequently affirmed by this court. 

DBN asserted that the invalidation of the claims effected 

by those two decisions constituted a “changed condition[] of 

fact or law” warranting the civil penalty’s modification or 

rescission under § 210.76. J.A. 725. 

The ITC denied DBN’s petition on res judicata grounds, 

interpreting DBN II as deciding that our contemporaneous 

invalidity affirmance in DBN I had no effect on the civil 

penalty order. J.A. 897–900. DBN again appealed to this 

court, arguing that the ITC erred in relying on res judicata 

grounds to deny DBN’s petition. DBN III, 755 F. App’x 

at 996. We agreed, explaining that DBN II did not divest 

the ITC of the authority to rescind or modify the civil penalty in light of the invalidity judgment. Id. at 997–98 (“Our 

holding in [DBN II] that the invalidation of the [asserted]

claims had no retroactive effect on the [c]onsent [o]rder 

does not bar the [ITC] from determining whether to modify 

or rescind the civil penalty under 19 C.F.R. §§ 210.76(a)(1) 

competent jurisdiction, provided that such finding 

or judgment has become final and non-reviewable. 

J.A. 168. 

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DBN HOLDING, INC. v. ITC 5

or (a)(2).” (footnote omitted)). We therefore remanded for 

the ITC to decide, in the first instance, whether to rescind 

or modify the civil penalty in light of our decision that the 

relevant patent claims are invalid. Id. at 998. 

On remand, the parties submitted briefing, and the 

ITC again denied DBN’s petition to rescind or modify the 

order. Certain Two-Way Glob. Satellite Commc’n Devices, 

Sys. & Components Thereof, Inv. No. 337-TA-854 (Remand), Comm’n Op., 2020 WL 5941990, at *2 (Aug. 18, 

2020) (“Satellites”) (J.A. 10–51). The ITC pointed out that 

19 C.F.R. § 210.76(a)(1) contemplates modifying or rescinding “remedial orders, i.e., exclusion orders, cease and 

desist orders, and consent orders,” but “does not refer to 

civil penalty orders.” Id. at *16. The ITC rejected DBN’s 

argument that the ITC had rescinded civil penalty orders 

in similar cases identified by DBN. Id. at *18–23. According to the ITC, DBN identified three categories of cases to 

support its argument: (1) the Magnets case5 in which the 

ITC rescinded a penalty order that had been previously affirmed by this court; (2) the ATMs case6 in which the ITC 

rescinded remedial orders in light of this court’s decisions 

invalidating the asserted patent claims; and (3) other 

cases7 in which the ITC rescinded remedial orders in light 

5 Certain Neodymium-Iron-Boron Magnets, Magnet 

Alloys, and Articles Containing Same, Inv. No. 337-TA-372, 

64 Fed. Reg. 56,515–16 (Oct. 20, 1999) (“Magnets”). 6 Certain Automated Teller Machines, ATM Modules, Components Thereof, and Products Containing the 

Same, Inv. No. 337-TA-989, Comm’n Notice (Mar. 11, 

2019). 

7 E.g., Certain Composite Wear Components and 

Products Containing Same, Inv. No. 337-TA-644 (Feb. 10, 

2011); Certain Steel Rod Treating Apparatus and Components Thereof, Inv. No. 337-TA-97 (Jan. 15, 1982); and 

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6 DBN HOLDING, INC. v. ITC

of a district court’s invalidation of the asserted patent 

claims. Id. The ITC concluded that none of those cases 

supported DBN’s petition. Id. at *18. 

The ITC then reassessed the relevant factors for determining civil penalties and concluded that the invalidation 

of the asserted claims did not change its original assessment of those factors when imposing the penalty. The factors, known as the EPROMs factors, include: 

(1) the good or bad faith of the respondent, (2) the 

injury to complainant, (3) respondent’s ability to 

pay, (4) the extent to which respondent has benefited from its violations, (5) the need to vindicate 

the authority of the Commission, and (6) the public 

interest. 

Id. at *17 (first citing San Huan New Materials High Tech, 

Inc. v. Int’l Trade Comm’n, 161 F.3d 1347, 1362 (Fed. Cir. 

1998); then citing Certain Erasable Programmable Read 

Only Memories, Inv. No. 337-TA-276 (Enforcement), 

Comm’n Op. (July 19, 1991) (“EPROMs”)); see also id.

at *23–27. 

The first factor, good faith, involves considering certain 

other factors called the Ninestar factors, namely whether 

the respondent

(1) had a reasonable basis to believe that the violating product was not within the scope of the Commission’s order, (2) requested an advisory opinion 

or clarification from the Commission, (3) provided 

any opinion of counsel indicating that it obtained 

legal advice before engaging in the acts underlying 

the charge of violation, (4) decided which products 

were subject to the order based on the decisions of 

Certain Large Video Matrix Display Systems and Components Thereof, Inv. No. 337-TA-75 (Aug. 10, 1980). 

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DBN HOLDING, INC. v. ITC 7

management and technical personnel, without legal advice, and (5) satisfied its reporting requirements under the relevant Commission order.

Id. at *23 (quoting Certain Ink Cartridges and Components 

Thereof, Inv. No. 337-TA-565, Comm’n Op., 2010 WL 

5642166, at *14 (Sept. 24, 2009), aff’d sub nom. Ninestar 

Tech. Co. v. Int’l Trade Comm’n, 667 F.3d 1373, 1385 (Fed. 

Cir. 2012)). The ITC rejected DBN’s argument that it acted 

in good faith in violating the consent order because it held 

a reasonable belief that the asserted claims were invalid. 

Id. at *24. The ITC observed that DBN did not address the 

Ninestar factors and that, in any event, a good faith belief 

of invalidity was not among those factors. Id. Further, the 

ITC reasoned, considering invalidity would be redundant 

because “the possibility of an invalidity judgment is expressly contemplated by the terms of the [c]onsent [o]rder 

and the effect of such a judgment is expressly provided for 

by the terms of the [c]onsent [o]rder.” Id. at *25. 

With respect to EPROMs factors two through five, the 

ITC explained that DBN presented no basis for finding that 

the invalidation of the asserted claims affected the civil

penalty amount or the ability of DBN to pay the amount. 

Id. at *25–26. Turning to “public interest,” the sixth 

EPROMs factor, the ITC determined that DBN had again 

not presented any basis for modifying or rescinding the 

civil penalty on public interest grounds. Id. at *26–27. It 

rejected DBN’s argument that “the civil penalty is no 

longer in the public interest given the EDVA invalidity 

judgment.” Id. at *26. The ITC again reasoned that DBN’s 

position overlooks the fact that the consent order expressly 

accounts for the subsequent invalidation of the patent 

claims. Id. The ITC further explained that “it is important 

that violators like [DBN] and potential future violators of 

consent orders clearly understand that the Commission expects such orders to be complied with and that there will 

be consequences if they are not.” Id. The ITC concluded, 

for all the foregoing reasons, that reassessment of the 

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8 DBN HOLDING, INC. v. ITC

EPROMs factors did not warrant rescinding or modifying 

the civil penalty in light of the asserted claims’ invalidation. Id. at *27. 

Finally, the ITC rejected DBN’s public policy argument 

that “[b]ecause there can be no infringement of an invalid 

patent claim, there is no longer an unfair competitive act 

for the Commission to remedy” and that “[a]t this juncture, 

there is no statutory purpose served by the [c]ivil [p]enalty 

[o]rder.” Id. (citation omitted). The ITC explained that this 

argument ignores the language of the consent order contemplating the invalidation of the asserted claims. Id. 

DBN appealed. We have jurisdiction under 28 U.S.C. 

§ 1295(a)(6). 

STANDARD OF REVIEW

We review the ITC’s denial of a petition to rescind or 

modify an order pursuant to 19 C.F.R. § 210.76 for an 

abuse of discretion. See 5 U.S.C. § 706(2)(A). “An abuse of 

discretion occurs where the decision is based on an erroneous interpretation of the law, on factual findings that are 

not supported by substantial evidence, or represents an unreasonable judgment in weighing relevant factors.” Star 

Fruits S.N.C. v. United States, 393 F.3d 1277, 1281 (Fed. 

Cir. 2005) (citing Arnold P’ship v. Dudas, 362 F.3d 1338, 

1340 (Fed. Cir. 2004)). 

DISCUSSION

I 

DBN argues that this court’s precedent and ITC practice support its petition to modify or rescind the ITC’s civil 

penalty order, and accordingly that the ITC abused its discretion by denying the petition. See Appellants’ Br. 13–17, 

20–21. First, DBN contends that the ITC erred in holding 

that the Magnets case does not compel modification or rescission of the civil penalty order. See Appellants’ 

Br. 14–15, 20–28. DBN acknowledges that Magnets

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DBN HOLDING, INC. v. ITC 9

involved a retroactive license agreement between the parties that negated prior acts of infringement. See, e.g., id.

at 23 (“In the case of the Magnets respondents, it was a 

retroactive license that rendered their prior actions noninfringing.”). DBN nevertheless contends that “there can 

be no material difference” between that case and this one 

involving the “final invalidation of patent claims that negates prior acts of infringement.” Id. at 15. We disagree

that Magnets governs this case. 

In Magnets, the consent order prohibited importation 

of the infringing articles, “except under consent or license.” 

Certain Neodymium-Iron-Boron Magnets, Magnet Alloys, 

and Articles Containing Same, Inv. No. 337-TA-372, 

Comm’n Notice, 1995 WL 945772, at *2 (Oct. 10, 1995). 

The ITC later determined that respondents had violated 

the consent order and assessed a civil penalty. Magnets, 

64 Fed. Reg. at 56,515. The parties reached a settlement

and filed a joint motion to vacate the penalty on the 

grounds that they had agreed upon a retroactive license. 

See id.; see also Appellants’ Br. 23. The ITC granted the 

parties’ joint motion given that the retroactive settlement 

authorized the action that was the subject of the civil penalty. Unlike in Magnets, the parties here did not reach any

such retroactive settlement, Appellee’s Br. 31, or any other 

form of agreement or settlement addressing the consent order violations. DBN does not explain how its violations of 

the consent order were authorized. DBN points out that it 

is now impossible to seek a retroactive license because the 

asserted patent claims have been invalidated. Appellants’ 

Br. 26. That point does not help DBN’s position because 

absent a retroactive settlement, we look to the consent order for such authorizations. The fact remains that, unlike 

in Magnets, the actions leading to DBN’s violation of the 

consent order were never authorized by the ITC or the complainant in the underlying Section 337 investigation. 

DBN’s arguments ignore the instruction we provided 

in DBN II that “[c]onsent decrees and orders have 

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10 DBN HOLDING, INC. v. ITC

attributes both of contracts and of judicial decrees.” 

805 F.3d at 1333 (quoting United States v. ITT Cont’l Baking Co., 420 U.S. 223, 237 n.10 (1975)). By entering the 

consent order, DBN agreed to discontinue any violation of 

Section 337. The ITC, in turn, terminated the investigation as required. From a contractual perspective, the 

breach of this promise provides the ITC a distinct ground 

for imposing a civil penalty. DBN agreed to the terms of 

the consent order, and those terms “unambiguously indicate[] that the invalidation trigger—like the expiration and 

unenforceability triggers—applies only prospectively.” Id.

at 1335. Had the consent order been written in retrospective terms, DBN might have a stronger argument that the

invalidation of the asserted claims renders the consent order null and void, or that modification is required. But under the clear terms of the consent order, DBN remained 

potentially liable for any violations up to the time of invalidation. Id. 

DBN points to cases involving modification or rescission of remedial orders as a basis to modify or rescind the 

civil penalty order in this case. See Appellants’ Br. 28–34. 

DBN appears to concede the ITC’s point that remedial orders are different from civil penalty orders in that the former are forward-looking, i.e., they prohibit future conduct, 

while the latter are backward-looking, i.e., they penalize 

past conduct. Id. at 33–34 (“Maybe so.”); see also Satellites, 

2020 WL 5941990, at *16. DBN, however, argues that “for

all relevant purposes,” remedial orders and the ITC’s civil 

penalty order here are “the same” because they are all 

predicated on “infringing conduct [that can] no longer 

be . . . considered” in light of the asserted claims’ invalidation. Appellants’ Br. 33–34. 

We are not persuaded that the ITC’s past practice involving the rescission or modification of a remedial order 

supports DBN’s position that the civil penalty order must 

be rescinded or modified. As we explained in DBN III, the 

ITC has relied on § 210.76 as a basis to rescind or modify a 

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DBN HOLDING, INC. v. ITC 11

civil penalty order on rare occasion, even though that provision, on its face, only contemplates rescinding or modifying remedial orders. 755 F. App’x at 997; see also 19 C.F.R. 

§ 210.76 (allowing persons to submit petitions to rescind or 

modify “an exclusion order, cease and desist order, or consent order”); Magnets, 64 Fed. Reg. at 56,515 (vacating a 

civil penalty “under the authority of . . . section 210.76”). It 

is unclear whether and under what circumstances § 210.76 

supports rescission or modification of a civil penalty order, 

but we need not decide that question today. What is evident in § 210.76 is that it commits to the ITC’s discretion 

the decision to rescind or modify previous orders. See 

19 C.F.R. § 210.76 (permitting persons to file petitions for 

rescission or modification; stating the ITC “may also on its 

own initiative consider such action”; and stating that “[i]f 

the Commission makes such a determination, it shall notify 

the Secretary of the Treasury and U.S. Custom and Border 

Protection” (emphasis added)). 

For all the above reasons, we are not persuaded that 

the case law identified by DBN requires a conclusion that 

the ITC determination denying DBN’s petition was an 

abuse of discretion. 

II

DBN also contends that the ITC erred in reassessing

the EPROMs factors and concluding that those factors do 

not require rescission or modification of the civil penalty 

order. See Appellants’ Br. 34–46. Addressing the first factor, good or bad faith, DBN III, 755 F. App’x at 997 n.2, 

DBN contends that it violated the consent order in good 

faith because it believed, when committing the violation, 

that the asserted claims were invalid, Appellants’ Br.

at 36–40. DBN argues that it was operating under this 

court’s rule in Commil USA, LLC v. Cisco Systems, Inc.—

which was subsequently vacated by the Supreme Court—

that “evidence of an accused inducer’s good-faith belief of 

invalidity may negate the requisite intent for induced 

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12 DBN HOLDING, INC. v. ITC

infringement.” 720 F.3d 1361, 1368 (Fed. Cir. 2013), vacated, 575 U.S. 632, 647 (2015). DBN thus equates, without a reasonable basis or legal authority, the intent 

required for induced infringement with the good faith factors under Ninestar. But it does not follow that lacking the 

requisite intent for induced infringement means that a 

party necessarily acts in good faith when violating an ITC 

consent order. These two tests involve separate legal analyses and determinations. For example, DBN points to 

nothing in Commil that modified the Ninestar factors, nor 

does it cite any authority to support its proposition that a 

lack of intent for induced infringement purposes is relevant 

to the Ninestar factors inquiry. DBN thus does not persuasively show that the ITC abused its discretion in its reassessment of the good faith EPROMs factor. 

The second EPROMs factor is the injury to the public. 

DBN III, 755 F. App’x at 997 n.2. The ITC found no harm 

to BriarTek as a result of DBN’s consent order violation. 

Satellites, 2020 WL 5941990, at *25. Neither party challenges that finding on appeal. Appellants’ Br. 40; Appellee’s Br. 40.

Regarding the third EPROMs factor—DBN’s ability to 

pay the penalty, DBN III, 755 F. App’x at 997 n.2—DBN 

contends that “[t]he fact that a party could pay an unlawful 

fine is not itself a reason to leave the fine in place,” Appellants’ Br. 40. The ITC responds that it previously found 

that DBN was able to pay the penalty assessed, and DBN 

presented no basis on remand to conclude that the asserted 

claims’ invalidation had any effect on that ability. Appellee’s Br. 40–41. We perceive no reason for finding that the 

ITC’s reassessment of this factor warrants rescission or 

modification of the penalty. 

Turning to EPROMs factor four, the extent to which 

DBN has benefited from its violations, DBN III, 

755 F. App’x at 997 n.2, DBN does not challenge the ITC’s 

finding that DBN financially benefited from its sales that 

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DBN HOLDING, INC. v. ITC 13

were in violation of the consent order, Appellants’ 

Br. 40–43. Instead, DBN argues that it cannot be deemed 

to have benefited from its violations (which were patent infringements) because the subsequent invalidation of the 

asserted claims of the ’380 patent negated all such infringement. Id. DBN again overlooks the nature of consent orders, which have attributes of both contracts and judicial

decrees. See DBN II, 805 F.3d at 1333. Here, DBN promised in the consent order not to commit unfair trade acts of 

infringement up until the point of patent invalidation, but 

DBN violated the consent order by engaging in infringing 

acts before that point. Even accepting that invalidation of 

the claims may negate DBN’s infringement, we are not persuaded that such invalidation negates its consent order violations. We discern no abuse of discretion in the ITC’s 

determination that reassessment of the fourth EPROMs

factor does not require rescission or modification. 

Regarding the fifth EPROMs factor, the need to vindicate the authority of the ITC, DBN III, 755 F. App’x 

at 997 n.2, DBN argues that “[t]he [ITC] cannot predicate 

a massive civil penalty solely to vindicate its own power,” 

Appellants’ Br. 43. Even if that were true, we are not persuaded that the ITC took such a course of action. Instead, 

the ITC reassessed all the EPROMs factors and again determined that those factors, taken together, support the 

civil penalty. See Satellites, 2020 WL 5941990, at *23–27. 

Because consent orders would be useless if their violation 

had no consequence, the ITC’s enforcement of the consent 

order via a civil penalty was a reasonable exercise of its 

enforcement authority under Section 337 and ITC regulations, especially in light of the record evidence of DBN’s bad 

faith in violating the consent orders. See DBN II, 805 F.3d 

at 1333 (“[DBN] has not shown, for example, that there 

was clear error in the Commission’s findings regarding 

[DBN]’s bad faith . . . .”). We see no reason to disturb the 

ITC’s reassessment of the fifth EPROMs factor.

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14 DBN HOLDING, INC. v. ITC

As for the remaining EPROMs factor, the public interest, DBN III, 755 F. App’x at 997 n.2, DBN contends that 

“[t]he public has no interest in penalizing a company for 

engaging in conduct that in no way harmed the public,” Appellants’ Br. 44. We agree with the ITC that deterring violation of its orders by imposing civil penalties for violative 

conduct is in the public interest. We discern no error in the 

ITC’s reassessment of the public interest factor. 

CONCLUSION

On remand, we instructed the ITC to assess in the first 

instance the law and factors relevant to the civil penalty 

order issued against DBN for violating the consent order 

that prohibited unfair trade acts of infringement involving 

claims that were deemed invalid subsequent to the entry of 

the consent order. We conclude that the ITC’s remand determination is based on a correct interpretation of law and 

findings that are reasonable and supported by substantial 

evidence. We hold that the ITC did not abuse its discretion 

in declining to rescind or modify its civil penalty order in 

view of the asserted claims’ invalidation. We have considered DBN’s remaining arguments and find them unpersuasive. For the reasons explained above, we affirm. 

AFFIRMED

COSTS

No costs.

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