United States Court of Appeals 

for the Federal Circuit ______________________ 

CLEARCORRECT OPERATING, LLC, 

CLEARCORRECT PAKISTAN (PRIVATE), LTD.,

Appellants

v.

INTERNATIONAL TRADE COMMISSION,

Appellee

ALIGN TECHNOLOGY, INC.,

Intervenor

______________________ 

2014-1527

______________________ 

Appeal from the United States International Trade 

Commission in Investigation No. 337-TA-833.

______________________ 

ON PETITIONS FOR REHEARING EN BANC

______________________ 

MICHAEL D. MYERS, McClanahan Myers Espey, LLP ̧ 

Houston, TX, for appellants. Also represented by ROBERT 

HENRY ESPEY II; GARY HNATH, PAUL WHITFIELD HUGHES, 

Mayer Brown LLP, Washington, DC.

SIDNEY A. ROSENZWEIG, Office of the General Counsel, 

United States International Trade Commission, Washington, DC, for appellee. Also represented by WAYNE W.

HERRINGTON, DOMINIC L. BIANCHI. 
2 CLEARCORRECT OPERATING, LLC v. ITC

STEPHEN BLAKE KINNAIRD, Paul Hastings LLP, Washington, DC, for intervenor. Also represented by THOMAS A.

COUNTS, IGOR VICTOR TIMOFEYEV. 

STEVEN METALITZ, Mitchell, Silberberg & Knupp, 

LLP, Washington, DC, for amicus curiae Association of 

American Publishers.

JONATHAN J. ENGLER, Adduci, Mastriani & Schaumberg, LLP, Washington, DC, for amici curiae Motion 

Picture Association of America, Recording Industry Association of America. Also represented by THOMAS RICHARD 

BURNS, JR., TOM M. SCHAUMBERG. 

GEOFFREY A. MANNE, International Center for Law & 

Economics, Portland, OR, for amicus curiae International 

Center for Law & Economics.

ERIC JAY FUES, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Washington, DC, for amicus curiae 

International Trade Commission Trial Lawyers Association. Also represented by MATTHEW BATHON, CHARLES F.

SCHILL, Steptoe & Johnson, LLP, Washington, DC; SARAH 

E. HAMBLIN, Adduci, Mastriani & Schaumberg, LLP, 

Washington, DC; GOUTAM PATNAIK, GWENDOLYN 

TAWRESEY, Pepper Hamilton LLP, Washington, DC.

______________________ 

Before PROST, Chief Judge, NEWMAN, LOURIE, DYK, 

MOORE, O’MALLEY, REYNA, WALLACH, TARANTO, CHEN, 

HUGHES, and STOLL, Circuit Judges. 

PROST, Chief Judge, and O’MALLEY, Circuit Judge, with 

whom WALLACH, Circuit Judge, joins, concur in the denial 

of the petitions for rehearing en banc.

NEWMAN, Circuit Judge, dissents from the denial of the 

petitions for rehearing en banc. 
CLEARCORRECT OPERATING, LLC v. ITC 3

PER CURIAM. 

O R D E R

Appellee International Trade Commission and intervenor Align Technology, Inc. each filed separate petitions 

for rehearing en banc. A response to the petitions was 

invited by the court and filed by the appellants ClearCorrect Operating, LLC and ClearCorrect Pakistan (Private), 

Ltd. Several motions for leave to file amici curiae briefs 

were also filed and granted by the court. 

The petitions, response, and briefs of amici curiae

were referred to the panel that heard the appeal, and 

thereafter were referred to the circuit judges who are in 

regular active service. A poll was requested, taken, and 

failed. 

Upon consideration thereof,

IT IS ORDERED THAT: 

The petitions for rehearing en banc are denied.

The mandate of the court will be issued on April 7, 

2016.

 FOR THE COURT

March 31, 2016 /s/ Daniel E. O’Toole

 Date Daniel E. O’Toole

 Clerk of Court 

 
United States Court of Appeals 

for the Federal Circuit ______________________ 

CLEARCORRECT OPERATING, LLC,

CLEARCORRECT PAKISTAN (PRIVATE), LTD.,

Appellants

v.

INTERNATIONAL TRADE COMMISSION,

Appellee

ALIGN TECHNOLOGY, INC.,

Intervenor

______________________ 

2014-1527

______________________ 

Appeal from the United States International Trade 

Commission in Investigation No. 337-TA-833.

______________________ 

PROST, Chief Judge, and O’MALLEY, Circuit Judge, with 

whom Circuit Judge WALLACH joins, concurring in the 

denial of rehearing en banc. 

We concur in the court’s denial of the petitions for rehearing en banc. We write briefly only to address certain 

points newly raised by the dissent, none of which support 

its incorrect interpretation of the statute. 

First, the dissent cites a hodgepodge of other legislative enactments: a Customs Bureau duty statute, the 
2 CLEARCORRECT OPERATING, LLC v. ITC

Trade Act of 1974, the Arms Export Control Act of 1976, 

the Bipartisan Congressional Trade Priorities and Accountability Act of 2015, and the Omnibus Trade and 

Competitiveness Act of 1998. Dissent at 8–12. The 

dissent’s view is that these laws illustrate Congress’s 

intent to account for the advent of things like digital data 

and electronic transmissions. But these wholly separate 

statutory regimes have no bearing on Congressional 

intent regarding Section 337; what Congress has chosen 

to do in connection with a completely different statute is 

of little relevance here.1 And even if we were to accept 

their relevance to this case, they would prove the opposite

 

1 For example, the cited decisions by the Court of 

International Trade and the Department of Labor, which 

interpret the Trade Act of 1974, have nothing to do with 

Section 337. Dissent at 8–9. The Trade Act of 1974 was 

enacted to provide assistance to domestic producers of 

“articles” whose jobs were being moved abroad. The 

meaning of the word “article” in this worker-protection 

context is irrelevant to the question of the ITC’s jurisdiction to regulate importation of articles that infringe U.S. 

patents. Likewise, there can be no question that the cited 

district court decision interpreting the word “defense 

articles” in the Arms Export Control Act of 1976 has no 

bearing on this case. Id. at 9–10. Unlike here, the word 

“defense articles” in the arms context is expressly defined 

as including “any item or technical data.” 22 C.F.R. 

§ 120.6. And the cited decision of the Customs Bureau 

was about whether software is merchandise that is statutorily subject to import duties. Dissent at 8. That decision has nothing to do with Section 337’s regulation of 

imported articles that infringe U.S. patents; indeed, the 

Customs Bureau’s tasks do not even include making 

determinations regarding importation of infringing articles. 
CLEARCORRECT OPERATING, LLC v. ITC 3

of the dissent’s point—namely, that when Congress 

wanted to bridge the gap between the non-digital world 

and the digital world, it did so affirmatively. Congress’s 

failure to do so here supports the conclusion drawn by the 

panel majority, not the dissent. Moreover, the dissent is 

wrong to suggest that it falls on us to change the law in 

order to address changing times. Id. at 6–7. Any action 

on that front must be taken by Congress, not us. Sony 

Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 

430–31 (1984) (“[A]s new developments have occurred in 

this country, it has been the Congress that has fashioned 

the new rules that technology made necessary.”); see also 

Kimble v. Marvel Entm’t, LLC, 135 S. Ct. 2401, 2414 

(2015) (“[T]he choice of what patent policy should be lies 

first and foremost with Congress.”). 

The dissent also notes that “Section 337 does not depend on the mode of importation; it depends on whether 

the imported good infringes a patent or copyright or 

trademark or design.” Dissent at 3. The fact that something might infringe a U.S. patent is separate from the 

question of whether it is an “article.” Both of these separate statutory requirements must be met in order for the 

ITC to exercise jurisdiction. 19 U.S.C. § 1337.

Finally, the dissent lists thirty definitions of “article,” 

each having varying degrees of specificity. Dissent at 16

n.2. While the dissent posits that “[a]ll the definitions 

define ‘article’ as distinguishing an item from its class as 

a whole,” id. at 16, only a handful of its cited definitions 

actually do so. And in any event, none of the dissent’s 

definitions are inconsistent with defining “article” as a 

“material thing.” Thus, even with all the definitions 

brought in at this late stage, the dissent fails to support 

its overbroad interpretation.

The panel majority was correct in interpreting the 

word “articles” in Section 337 to mean “material things.” 

That interpretation is the one that is mandated by the 
4 CLEARCORRECT OPERATING, LLC v. ITC

plain meaning of the word, the context of 19 U.S.C. 

§ 1337(a) and the entire statutory scheme, and the legislative history. This court is correct to deny en banc review. 
United States Court of Appeals 

for the Federal Circuit ______________________ 

CLEARCORRECT OPERATING, LLC,

CLEARCORRECT PAKISTAN (PRIVATE), LTD.,

Appellants

v.

INTERNATIONAL TRADE COMMISSION,

Appellee

ALIGN TECHNOLOGY, INC.,

Intervenor

______________________ 

2014-1527

______________________ 

Appeal from the United States International Trade 

Commission in Investigation No. 337-TA-833.

______________________ 

NEWMAN, Circuit Judge, dissenting from denial of rehearing en banc.

Section 337 of the Tariff Act, 19 U.S.C. § 1337, authorizes the International Trade Commission to exclude 

imports that infringe a United States patent, copyright, 

trademark, mask work, or design. The Commission 

requests rehearing en banc of the court’s ruling that

infringing digital goods that are imported electronically 

are not subject to exclusion under Section 337 of the Tariff 

Act. Flaws in this ruling were pointed out at ClearCorrect, Inc. v. Int’l. Trade Comm’n, 810 F.3d 1283, 1304 
2 CLEARCORRECT OPERATING, LLC v. ITC

(Fed. Cir. 2015) (Newman, J., dissenting). I write to 

elaborate on the conflicts that have been created, and to 

consider the concerns raised by amici curiae.1

The court’s decision is inconsistent with decisions of 

the Supreme Court, the Federal Circuit, the Court of 

Customs and Patent Appeals, the Court of International 

Trade, the Tariff Commission, the Department of Labor,

the Bureau of Customs and Border Protection, the Arms 

Control Export Act, and the Bipartisan Congressional 

Trade Priorities and Accountability Act. I respectfully 

dissent. 

DISCUSSION

This court now holds that the Commission has no “jurisdiction” to exclude infringing digital goods that are 

imported electronically. The court’s removal of this 

jurisdiction conflicts with our recent decision in Suprema, 

Inc. v. International Trade Commission, 796 F.3d 1338, 

1350 (Fed. Cir. 2015) (en banc), wherein the court reaffirmed that “the legislative history [of Section 337] consistently evidences Congressional intent to vest the 

Commission with broad enforcement authority to remedy 

unfair trade acts.” This conflict requires resolution. 

The court now holds that the word “article” in Section 

337 of the Tariff Act cannot include digital goods, although “article” is the general term used throughout 

judicial and agency rulings for goods in trade, including 

digital goods. Digital goods are included in the tariff 

 

1 Amicus briefs supporting rehearing were filed by 

the International Trade Commission Trial Lawyers 

Association, the International Center for Law and Economics, the Motion Picture Association of America and 

the Recording Industry Association of America, and the 

Association of American Publishers. 
CLEARCORRECT OPERATING, LLC v. ITC 3

laws; they are imported, bought, and sold; they are subject to the patent laws, and have been the subject of many 

infringement suits. Infringement does not depend on 

whether the digital goods are carried on a hard substrate, 

or electronically.

Section 337 does not depend on the mode of importation; it depends on whether the imported goods infringe a 

patent or copyright or trademark or design. The amici 

curiae point out the consequences of the court’s change of 

law, for infringing imports of books, motion pictures, and 

other products subject to transmission in digital form. 

The disruption that this ruling is already causing warrants en banc attention.

I 

Section 337 does not distinguish between infringing goods imported electronically and 

infringing goods imported on a physical medium 

The International Trade Commission applied Section 

337 to ClearCorrect’s “digital models, digital data, and 

digital information,” produced by ClearCorrect’s Pakistani 

affiliate and transmitted into the United States via the 

Internet; the Commission found that the patents of the 

complainant Align Technology were valid, and infringed 

by the imported digital goods. On appeal, this court held 

that Section 337 of the Tariff Act of 1930 does not include 

digital goods that are electronically imported. However, 

Section 337 is not so limited. The statue provides:

19 U.S.C. § 1337. Unfair practices in import 

trade

(a) Unlawful activities; covered industries; 

definitions.

(1) Subject to paragraph (2), the following are unlawful. . . . 
4 CLEARCORRECT OPERATING, LLC v. ITC

*** 

(B) The importation into the United 

States, the sale for importation, or the sale 

within the United States after importation

by the owner, importer, or consignee, of 

articles that— 

(i) infringe a valid and enforceable 

United States patent or a valid 

and enforceable United States 

copyright registered under Title 

17, United States Code, or 

(ii) are made, produced, processed, 

or mined under, or by means of, a 

process covered by the claims of a 

valid and enforceable United 

States patent.

*** 

(2) Subparagraphs (B), (C), (D), and (E) of paragraph (1) apply only if an industry in the United 

States, relating to the articles protected by the patent, copyright, trademark, mask work, or design 

concerned, exists or is in the process of being established. 

*** 

Section 337 was first enacted in 1922, to aid in protecting

domestic industry against unfair competition from goods

imported into the United States. The Senate Report 

states the purpose: 

The provision relating to unfair methods of competition in the importation of goods is broad 

enough to prevent every type and form of unfair 

practice and is, therefore, a more adequate protection to American industry than any antidumping 

statute the country has ever had.
CLEARCORRECT OPERATING, LLC v. ITC 5

S. REP. NO. 67-595, at 3 (1922). 

At the complaint of patentee Align Technologies, the 

Commission conducted an investigation, reported at 

Certain Digital Models, Digital Data, & Treatment Plans 

for Use in Making Incremental Dental Positioning Adjustment Appliances, the Appliances Made Therefrom, & 

Methods of Making the Same, Inv. No. 337-TA-833 (Commission Opinion, April 10, 2014). The Commission found 

the Align patents valid and infringed, and issued a Cease 

and Desist Order against

importing (including through electronic transmission) the digital models, digital data, and orthodontic plans that were found to infringe the Align 

patents.

Order (April 3, 2014). On appeal, the Federal Circuit 

reversed the Order, reported at ClearCorrect Operating, 

LLC v. Int’l Trade Comm’n, 810 F.3d 1283 (Fed. Cir. 

2015). This reversal has produced many conflicts and 

concerns, warranting en banc rehearing.

The court’s ruling today is the first import distinction

depending on the carrier by which the infringing goods

are imported.

II

Precedent is uniformly at odds with this 

court’s position

Our predecessor Court of Customs and Patent Appeals, whose precedent binds the Federal Circuit, recognized the purpose of Section 337 “to give to industries of 

the United States, not only the benefit of the favorable 

laws and conditions to be found in this country, but also 

to protect such industries from being unfairly deprived of 

the advantage of the same and permit them to grow and 

develop.” Frischer & Co. v. Bakelite Corp., 39 F.2d 247, 

259 (CCPA 1930). Over the decades, the International 
6 CLEARCORRECT OPERATING, LLC v. ITC

Trade Commission and the CCPA implemented Section 

337 “to provide an adequate remedy for domestic industries against unfair methods of competition and unfair 

acts initiated by foreign concerns operating beyond the in 

personam jurisdiction of domestic courts.” Sealed Air 

Corp. v. Int’l Trade Comm’n, 645 F.2d 976, 985 (CCPA 

1981). The Federal Circuit continued this purpose, stating in Lannom Manufacturing Co. v. International Trade 

Commission, 799 F.2d 1572 (Fed. Cir. 1986), that “the 

purpose of Section 337 from its inception was to provide 

relief to United States industry from unfair acts, including infringement of United States patents by goods manufactured abroad.” Id. at 1580.

The Supreme Court counsels that statutory law 

should be adapted to its legislative purpose, in the context 

of advances in technology. In Fortnightly Corp. v. United 

Artists Television, Inc., 392 U.S. 390 (1968), the Court 

considered “a statute that was drafted long before the 

development of the electronic phenomena with which we 

deal here,” stating that “[w]e must read the statutory 

language . . . in the light of drastic technological change.” 

Id. at 395–96.

The Court observed in Twentieth Century Music Corp. 

v. Aiken, 422 U.S. 151 (1975), that although Congress did 

not revise the Copyright Act of 1909 following the advent 

of radio (and television), “copyright law was quick to 

adapt to prevent the exploitation of protected works 

through the new electronic technology.” Id. at 158. The 

Court observed the “ultimate aim” of the copyright law “to 

stimulate artistic creativity for the general public good,” 

and stated that “[w]hen technological change has rendered its literal terms ambiguous, the Copyright Act must 

be construed in light of this basic purpose.” Id. at 156.

The patent laws are not limited to the technologies 

that existed when the Patent Act of 1952 (or any other 

patent statute) was enacted. And Section 337 is not 
CLEARCORRECT OPERATING, LLC v. ITC 7

limited to the technology of 1930. Computer-implemented 

digital technology was considered by the Court in Diamond v. Diehr, 450 U.S. 175 (1981); and in Diamond v. 

Chakrabarty, 447 U.S. 303 (1980), the Court considered 

whether the Patent Act included man-made biologic 

products—although neither technology easily fits the 

words of any patent statute.

It is now beyond debate that digital goods are subject 

to the patent law, and it is beyond debate that digital 

goods can be imported; yet this court holds that infringing 

digital goods are not subject to the Tariff Act if imported 

electronically. The court’s ruling not only defies the 

Court’s principles, but conflicts with our own precedent, 

including Suprema, supra. In Lucent Technologies, Inc. v. 

Gateway, Inc., 580 F.3d 1301, 1321 (Fed. Cir. 2009), this 

court rejected the argument that digital goods such as 

computer software are not a “material or apparatus” and 

therefore not liable for contributory infringement. 

The Commission’s ruling in this case is not its first 

exclusion of infringing digital goods. In Certain Hardware 

Logic Emulation Systems, Inv. No. 337-TA-383, USITC 

Pub. 3089 (March 1, 1998) the Commission held that 

“[h]aving found that respondents’ software contributorily 

infringes the claims in issue, we are of the view that our 

remedial orders must reach that software.” Id. at 18. In 

Hardware Logic the Commission stated that “it would be 

anomalous for the Commission to be able to stop the 

transfer of a CD-ROM or diskette containing respondents’ 

software, but not be able to stop the transfer of that very 

same software when transmitted in machine readable 

form by electronic means.” Id. at 29.

Section 337 does not determine infringement; its purpose is to regulate unfair competition by infringing imports. The carrier by which the infringing imports arrive 

in the United States is irrelevant. Contrary to this court’s 

proposition, it is not “regulation of the Internet” to ex-
8 CLEARCORRECT OPERATING, LLC v. ITC

clude infringing digital goods. As the amici curiae point 

out, this court’s ruling has consequences beyond patent 

infringement, warranting our reconsideration.

The rulings of the International Trade Commission comport with the rulings of the Bureau of Customs and Border Protection

The Customs Bureau held in HQ 114459 (Sept. 17, 

1998):

We further find that the transmission of software 

modules and products to the United States from a 

foreign country via the Internet is an importation 

of merchandise into the customs territory of the 

United States . . . .

The Customs ruling stated: “The fact that the importation 

of the merchandise via the Internet is not effected by a 

more ‘traditional vehicle’ (e.g., transported on a vessel) 

does not influence our determination.” Id. at 2.

It is established that digital products are “goods” and 

“merchandise” and that their transmission via the Internet is an importation into the United States. It is established that digital goods are subject to the patent law. No 

authority has held that infringing digital goods that are 

imported electronically are not subject to the laws of 

infringement or of importation.

The Court of International Trade reached 

the same conclusion

The Trade Act of 1974 provides Trade Adjustment Assistance “to workers involved in the production of an 

‘article’ who lose their jobs due to increased competition 

from ‘foreign articles’ or due to the shifting of production 

abroad.” Former Employees of IBM Corp. v. Chao, 292 F. 

App’x 902, 904 (Fed. Cir. 2008).

The Court of International Trade, interpreting the

word “article” in the Trade Act, explicitly rejected the 
CLEARCORRECT OPERATING, LLC v. ITC 9

argument that software is not an “article” unless embedded in a tangible medium. The court stated, “[t]he plain 

language of the Trade Act does not require that an article 

must be tangible.” Former Emps. of Comput. Scis. Corp. 

v. U.S. Sec’y of Labor, 30 Ct. Int’l. Trade 124, 130–131, 

133 (2006). 

The Department of Labor reached the same 

conclusion

The Department of Labor, interpreting the Trade Act 

for purposes of Trade Adjustment Assistance, stated that 

“[s]oftware and similar intangible goods that would have 

been considered articles, for the purposes of the Trade 

Act, if embodied in a physical medium will now be considered to be articles regardless of their method of transfer.” 

IBM Corporation Global Services Division, Piscataway, 

NJ; Middletown, NJ; Notice of Revised Determination on 

Remand, 71 FR 29183-01 (May 19, 2006).

The Arms Export Control Act reached the 

same conclusion

The Arms Export Control Act (originally enacted as 

the Foreign Military Sales Act in 1968) prohibits the sale 

or lease of a “defense article or defense service” unless 

certain criteria are met. Pub. L. 90-629, § 3(a), 82 Stat. 

1320, 1322 (1968) (codified at 22 U.S.C. § 2753(a)). The 

President is authorized to “designate those items which 

shall be considered as defense articles and defense services.” 22 U.S.C. § 2778(a)(1). The Secretary of State, 

acting by designation, defined “defense article” as “any 

item or technical data designated in § 121.1 of this subchapter.” 22 C.F.R. § 120.6. “Technical data” is defined to 

include “[s]oftware . . . directly related to defense articles,” 

as well as “information in the form of blueprints, drawings, photographs, plans, instructions or documentation.” 

22 C.F.R. § 120.10(a)(1), (a)(4).
10 CLEARCORRECT OPERATING, LLC v. ITC

Applying this statute to the posting to the Internet of 

digital plans for 3D printing of gun parts, the court in 

Defense Distributed v. U.S. Dep’t of State, 121 F. Supp. 3d 

680 (W.D. Tex. 2015) (currently on appeal), observed that 

digital information is within the meaning of “defense 

articles.”

The Omnibus Trade and Competitiveness Act 

of 1988 reached the same conclusion

In 1988 Congress reaffirmed the ITC’s authority for 

unfair competition due to imports that infringe patents 

and copyrights. Omnibus Trade and Competitiveness Act 

of 1988, Pub. L. No. 100-418, § 1342(a), 102 Stat. 1107, 

1212. The Senate Report explained:

As indicated by the scope of its language, section 

337 was intended to cover a broad range of unfair 

acts not then covered by other unfair import laws. 

However, over the years, patent, copyright, and 

trademark infringement were recognized as unfair trade practices within the meaning of section 

337, and today section 337 is predominantly used 

to enforce U.S. intellectual property rights.

S. REP. NO. 100-71, at 130 (1987). The Omnibus Trade 

Act reiterated the purpose to provide “a more effective 

remedy for the protection of United States intellectual 

property rights” through exclusion of infringing imports. 

Omnibus Trade and Competitiveness Act, supra, 

§ 1341(b), 102 Stat. at 1212. This statute reinforced 

reliance on Section 337 to exclude infringing imports.

The Trade Priorities and Accountability Act 

of 2015 reached the same conclusion

In recent trade negotiations, Congress again rejected 

a distinction between digital goods and the means by 

which they are transported. The Bipartisan Congressional Trade Priorities and Accountability Act of 2015 covers 

“digital trade in goods and services” and states that “[t]he 
CLEARCORRECT OPERATING, LLC v. ITC 11

principal negotiating objectives of the United States . . . 

are . . . to ensure that electronically delivered goods and 

services receive no less favorable treatment under trade 

rules and commitments than like products delivered in 

physical form.” Pub L. No. 114-26, § 102(a)(6), (a)(6)(B)(i), 

129 Stat. 320, 325 (2015).

If digital imports were intended to be excluded from 

Section 337, a statutory change could have been made at 

least by the Omnibus Trade and Competitiveness Act of 

1988, for the digital world was burgeoning. By 1988, 

copyright infringement was well understood to include 

electronic transmissions; for example, during consideration of the Copyright Act of 1976, the House Report stated: 

The corresponding definition of “display” covers 

any showing of a “copy” of the work, “either directly or by means of a film, slide, television image, or 

any other device or process.” . . . In addition to the 

direct showings of a copy of a work, “display” 

would include the projection of an image on a 

screen or other surface by any method, the transmission of an image by electronic or other means . 

. . .

H.R. REP. NO. 94-1476, at 64 (1976); see id. at 80 (“Unless 

[excused under some other provision of the Copyright Act] 

. . . transmission of an image to the public over television 

or other communication channels, would be an infringement for the same reasons that reproduction in copies 

would be.”).

Congress would not have implicitly excluded known 

aspects of copyright law when it enacted the Omnibus 

Trade and Competitiveness Act of 1988 without some 

statement to that effect. “Congress . . . does not alter the 

fundamental details of a regulatory scheme in vague 

terms or ancillary provisions—it does not, one might say, 

hide elephants in mouseholes.” Whitman v. Am. Trucking 
12 CLEARCORRECT OPERATING, LLC v. ITC

Ass’ns, 531 U.S. 457, 468 (2001). It defies logic to suggest 

that Congress intended or understood that Section 337, as 

amended in 1988, would not address all forms of copyright 

infringement and would exclude electronic transmissions.

The amici curiae concerned with copyright state their 

concern that this court’s casual elimination of remedy for 

Section 337 infringement by goods imported by electronic 

transmission will have a powerful impact on the importation of books and other publications, as well as on infringing digital imports of motion pictures and other 

copyrighted material.

III

This entire body of interpretation shows the 

understanding that “article” is not limited to 

classical technology

The Customs Court, now the Court of International 

Trade, explained that “the word ‘article’ is itself a nebulous concept seemingly employed in the Tariff Act for the 

very reason that it possesses an indefinite and neutral 

meaning.” Close & Stewart v. United States, 268 F. Supp. 

466, 468–69 (Cust. Ct. 1967).

Definitions of “article” in the trade context show the

word “article” as a general term for things that are imported. “The word ‘articles’ when used in a tariff law 

should be given a broad, liberal meaning . . . .” G. 

Hirsch’s Sons v. United States, 167 F. 309, 311 (2d Cir. 

1909).

The Court of Customs and Patent Appeals explained 

that “the word ‘articles’ is used hundreds of times in most 

tariff statutes; that Congress clearly meant it to have a 

broad meaning in some provisions and a restricted meaning in others; and that it has meanings varying with the 

purposes to be accomplished.” D N & E Walter & Co v. 

United States, 44 CCPA 144, 147 (1957). The CCPA 

stated in United States v. A. Johnson & Co., 588 F.2d 297, 
CLEARCORRECT OPERATING, LLC v. ITC 13

300 (CCPA 1978), that: “In some instances it [‘article’] is 

used as a synonym for ‘thing’ and embraces any importation, and in other contexts it takes on a narrower meaning.” 

Section 337 does not define “article,” but other sections of the same Tariff Act include an express definition. 

In Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 860 (1984) the Court looked to 

an express definition in another section of the same 

statute for guidance on the meaning of an undefined term, 

stating: “Although the definition in that section is not 

literally applicable to the permit program, it sheds as 

much light on the meaning of the word ‘source’ as anything in the statute.” Id. It is highly relevant that Section 332 of the Tariff Act of 1930 states: “The term ‘article’ 

includes any commodity, whether grown, produced, fabricated, manipulated, or manufactured.” This text also 

appears in the Tariff Act of 1922, section 318(b). 

The Court of Customs and Patent Appeals in 1940, 

citing Webster’s New International Dictionary, explained 

that, in the Tariff Act of 1930, “Congress said: ‘and paid 

upon all articles when imported from any foreign country.’ 

Unquestionably, Congress meant, by employing that 

language, to include under the word ‘articles’ any provided-for substance, material or thing of whatever kind or 

character that was imported into this country.” United 

States v. Eimer & Amend, 28 CCPA 10, 12 (1940).

The Supreme Court, in a case to recover duties paid 

under protest under an earlier tariff statute, stated, “[i]n 

common usage, ‘article’ is applied to almost every separate substance or material, whether as a member of a 

class, or as a particular substance or commodity.” Junge 

v. Hedden, 146 U.S. 233, 238 (1892). The Court, reviewing the variety of uses of the word “article” in the tariff 

statutes, concluded “[w]e agree with the circuit court that 

the word must be taken comprehensively.” Id. at 239.
14 CLEARCORRECT OPERATING, LLC v. ITC

The Dictionary of Tariff Information, produced by the 

Tariff Commission (now the International Trade Commission), states that “[t]he word ‘article’ as ordinarily used in 

tariff acts embraces commodities generally, whether 

manufactured wholly or in part or not at all.” Articles, 

DICTIONARY OF TARIFF INFORMATION (1924) (emphasis 

added). The same dictionary also states that narrower 

meanings must arise from context, not from the use of 

“articles” itself: “The restricted use of the word ‘article’ 

has been recognized by the courts and the rule laid down 

that where an intention appears from the text of the law 

to give the word ‘article’ a narrower meaning than it 

ordinarily has, such meaning shall be applied in the 

administration of the law.” Id.

The Commission correctly construed the word

“articles”

The Commission stated that “the statutory construction of ‘articles’ that hews most closely to the language of 

the statute and implements the avowed Congressional 

purpose for Section 337 encompasses within its scope the 

electronic transmission of the digital data sets at issue in 

this investigation.” Comm’n Op. at 36. The Commission 

concluded that “articles” encompassed all “articles of 

commerce.” The Court defined “articles of commerce” to 

include pure information, holding in Reno v. Condon, 528 

U.S. 141 (2000), that the Commerce Clause applies to 

interstate transmission of information in motor vehicle 

records sold or released “into the interstate stream of 

business.” Id. at 148.

Digital goods did not exist in 1922 and 1930. Nothing 

in the statute shows an intent to omit later-discovered 

technologies from Section 337. It cannot have been the 

legislative intent to lock the statute into antiquity. Unless explicitly provided, statutes are not limited to the 

circumstances at the time of enactment. See Diamond v. 

Chakrabarty, 447 U.S. at 315 (“This Court frequently has 
CLEARCORRECT OPERATING, LLC v. ITC 15

observed that a statute is not to be confined to the ‘particular application[s] . . . contemplated by the legislators.’”). 

Section 337 was written in broad terms, with no exclusions; the Commission reasonably concluded that Congress did not intend to exclude new fields of technology, 

and inventions not yet made, from a statute whose purpose is to support invention.

Although digital goods, electronically imported, are 

not mentioned in the dictionaries of the 1920s, no reason 

has been shown to exclude them from the “articles” of 

Section 337. The Commission reasonably and correctly 

defined “articles” in Section 337 as encompassing all 

articles of commerce, including digital goods and electronic commerce.

This court’s reversal of the Commission based 

on selections from chosen dictionaries cannot 

be supported

The words and text of the Tariff Act show that Section 

337 is directed to unfair trade practices in importation of 

articles infringing patents, copyrights, trademarks, mask 

works, and designs. Nothing in any provision of the Tariff 

Act suggests an intention to limit “articles” to goods that 

can be viewed with the human eye or held in the human 

hand. Digital goods readily fit the purpose and the text of 

the Tariff Act.

The Commission justly criticizes this court’s selection 

of dictionaries. We undertook to survey the dictionaries of 

the era, and found forty-five dictionaries in the Library of 

Congress published between 1900 and 1930, most with 

multiple definitions of “article.” We found twenty-five

different entries for the noun form of “article” and thirty
16 CLEARCORRECT OPERATING, LLC v. ITC

different definitions that could apply to the use of the 

word “article” in Section 337. 2

All the definitions define “article” as distinguishing an 

item from its class as a whole. As expected, the definitions are generally similar; some are nearly identical. 

Five of the thirty unique definitions use the word “material” or something similar. Three use the phrase “material thing.” Nine use the word “thing,” but not “material.” 

Three use the phrase “particular thing.” Six use the word 

“commodity.” Six use the word “substance.” Three use 

 

2 The thirty definitions are: “a particular thing”; “a 

separate portion of a material thing”; “any particular 

commodity or material substance (most frequently used of 

things manufactured, or of things exposed for sale.)”; “a 

distinct portion or member”; “a material thing, as one of a 

class”; “an item”; “an individual piece or thing of a class 

(as, an article of food or of dress)”; “a thing, indefinitely 

(as, what is that article?)”; “a commodity”; “a distinct part. 

Upon each article of human duty)”; “a particular commodity, or substance; as, an article of merchandise; salt is a 

necessary article, in common usage, this word is applied 

to almost every separate substance or material”; “a particular object or substance”; “a material thing or class of 

things; as, an article of food”; “something considered by 

itself and as apart from other things of the same kind or 

from the whole of which it forms a part”; “a thing of a 

particular class or kind, as distinct from a thing of another class or kind”; “a separate item”; “a particular commodity”; “particular thing, as the next a[rticle]”; “a particular 

substance”; “a particular thing or class of things”; “a 

distinct part”; “a particular commodity or substance”;

“Separate element or part”; “Something considered by 

itself”; “a thing of a particular class or kind”; “A separate 

element, member, or part of anything”; “A distinct part or 

particular”; “Item”; “a substance or commodity”; “a thing.”
CLEARCORRECT OPERATING, LLC v. ITC 17

the word “item.” Twelve use the adjective “particular” as 

part of the definition. A unifying theme of all the definitions is that “article” refers to one of a class of things, and 

that the nature of the class is defined by context, not by 

the word “article.”

In Section 337(a) the only words modifying “article” 

are “importation” (“importation of articles”), “sale” (“sale 

of such articles”) and “infringe” (“articles that—infringe”). 

None of these words mandates a gross materiality that 

would eliminate digital goods. In Section 337 the word 

“articles” is unlimited in any manner that might suggest a 

narrower meaning, on the customary canons of ejusdem 

generis or noscitur a sociis. We can find no suggestion in 

the text or context that Congress intended the word 

“article” to limit Section 337 to goods or technology that 

existed in 1930.

“After all, what word other than ‘articles’ could Congress have used if it did want to include intangible things 

within the scope of the Act?” Amicus brief of Int’l. Ctr. for 

Law and Econ. at 4. A common sense reading of Section 

337, along with the other statutes and regulations reported supra, shows the intended breadth of these infringement/importation statutes.

The statutory authorization of the cease-anddesist order in 1975 does not mean that digital goods are excluded from Section 337

The court states that the word “article” cannot include 

digital goods because the Tariff Act’s remedies in 1930 

were limited to exclusion orders. In 1975, Congress 

amended the Tariff Act to add the remedy of the ceaseand-desist order for infringing imports. The Senate 

Report states:

It is clear to your committee that the existing 

statute, which provides no remedy other than exclusion of articles from entry, is so extreme or in-
18 CLEARCORRECT OPERATING, LLC v. ITC

appropriate in some cases that it is often likely to 

result in the Commission not finding a violation of 

this section, thus reducing the effectiveness of section 337 for the purposes intended.

S. Rep 93-1298 (1974), reprinted in 1974 U.S.C.C.A.N. 

7186, 7331. The Report states that “[t]he power to issue 

cease and desist orders would add needed flexibility.” Id. 

The Report states that “[n]o change has been made in the 

substance of the jurisdiction conferred under Section 

337(a) with respect to unfair methods of competition or 

unfair acts in the import trade.” Id. at 7327.

Even if it were not practicable to remedy digital importation using the technology of 1930, this cannot mean 

that digital importation by Internet is immune from the 

Commission’s cease-and-desist authority.

Infringement does not vary with the carrier

into the United States

By its terms, Section 337 is limited to infringing imports. Imports “are the articles themselves which are 

brought into the country.” Brown v. State of Maryland, 25 

U.S. 419, 437 (1827). Section 337 prohibits “importation . 

. . of articles that—infringe.” The mode of importation, or 

whether the article passes through a Customs port of 

entry, does not matter. The Supreme Court has made 

this clear: 

Importation . . . consists in bringing an article into 

a country from the outside. If there be an actual 

bringing in it is importation regardless of the 

mode in which it is effected. Entry through a customs house is not of the essence of the act.

Cunard S.S. Co. v. Mellon, 262 U.S. 100, 122 (1923).

Without doubt, electronically transmitted goods are 

imported goods, whether or not exempt from import 

duties. See General Note 3(e)(ii), HTSUS (2015) (Rev. 1)
CLEARCORRECT OPERATING, LLC v. ITC 19

(exempting telecommunication transmissions from import

duties); see also Former Emps., 30 Ct. Int’l. Tr. at 131 

(“General Note 3(e) supports the conclusion that telecommunications transmissions, which would include transmissions of software code via the Internet, are exempt 

from duty while acknowledging that they are goods entering into the customs boundaries of the United States.”). 

The Customs agency agrees. See HQ 114459 (Sept. 17, 

1998) (“We further find that the transmission of software 

modules and products to the United States from a foreign 

country via the Internet is an importation of merchandise 

into the customs territory of the United States”).

Section 337 does not concern the imposition of duties 

for imported software code; it concerns whether infringing 

digital goods may be imported in violation of valid patents 

or other property rights. This case is about international 

trade, not Internet regulation.

If there were doubt about the correct interpretation of Section 337, the Commission’s 

reasonable interpretation requires deference

It is not disputed that the digital data sets and digital 

models for teeth alignment, produced in Pakistan and 

imported into the United States, infringe the patents of 

Align Technology. If this court remains uncertain as to 

the meaning of Section 337, the Commission’s wellreasoned interpretation is entitled to judicial deference. 

“[I]f the statute is silent or ambiguous with respect to the 

specific issue, the question for the court is whether the 

agency’s answer is based on a permissible construction of 

the statute.” Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984).

A permissible construction is one that is “rational and 

consistent with the statute.” Sullivan v. Everhart, 494 

U.S. 83, 88-89 (1990) (quoting N.L.R.B. v. United Food & 

Commercial Workers Union, Local 23, AFL-CIO, 484 U.S. 

112, 123 (1987)). “If the agency interpretation is not in 
20 CLEARCORRECT OPERATING, LLC v. ITC

conflict with the plain language of the statute, deference 

is due.” Nat’l R.R. Passenger Corp. v. Boston & Maine 

Corp., 503 U.S. 407, 417 (1992).

The obligation of deference to the Commission’s reasonable statutory interpretation has been recognized by 

the Federal Circuit. E.g., TianRui Grp. Co. v. Int’l Trade 

Comm’n, 661 F.3d 1322, 1332 (Fed. Cir. 2011) (“We have 

held that the Commission’s reasonable interpretations of 

section 337 are entitled to deference.”); Kinik Co. v. Int’l 

Trade Comm’n, 362 F.3d 1359, 1363 (Fed. Cir. 2004) (“To 

the extent that there is any uncertainty or ambiguity in 

the interpretation of § 337(a) and its successor 

§ 1337(a)(1)(B)(ii), deference must be given to the view of 

the agency that is charged with its administration.”); 

Enercon GmbH v. Int’l Trade Comm’n, 151 F.3d 1376, 

1381 (Fed. Cir. 1998) (“As the agency charged with the 

administration of section 337, the ITC is entitled to appropriate deference to its interpretation of the statute.”).

“Congress cannot, and need not, draft a statute which 

anticipates and provides for all possible circumstances in 

which a general policy must be applied to a specific set of

facts. It properly leaves this task to the authorized agency.” Micron Tech., Inc. v. United States, 243 F.3d 1301, 

1312 (Fed. Cir. 2001). To the extent that new technologies are involved in these infringing importations, deference is appropriate to the agency’s reasonable application 

of the statute it is charged to administer. See Nat’l Cable 

& Telecomms. Ass’n, Inc. v. Gulf Power Co., 534 U.S. 327, 

339 (2002) (upholding agency interpretive authority 

where the statute involved “technical, complex, and 

dynamic” subject matter that “might be expected to evolve 

in directions Congress knew it could not anticipate.”).

The court offers no explanation, other than to disagree with the Commission, and with every other authority 

that has interpreted any relevant aspect.
CLEARCORRECT OPERATING, LLC v. ITC 21

Judicial rehearing is appropriate

This court limits the Tariff Act on the theory that

Congress was unaware of digital goods in 1922 and 1930; 

but the Court “frequently has observed that a statute is 

not to be confined to the ‘particular application[s] . . . 

contemplated by the legislators.’” Chakrabarty, 447 U.S. 

at 315 (quoting Barr v. United States, 324 U.S. 83, 90 

(1945)). The Chakrabarty Court explicitly rejected the 

argument that because “genetic technology was unforeseen when Congress enacted § 101” the Court should 

restrict the statute and await action by Congress. Id. at 

314. The Court invoked Marbury v. Madison, 1 Cranch 

137, 177 (1803), stating that “once Congress has spoken it 

is ‘the province and duty of the judicial department to say

what the law is.’” Id. at 315. The Court stated that “our 

obligation is to take statutes as we find them, guided, if 

ambiguity appears, by the legislative history and statutory purpose.” Id.

The rehearing protocol allows a court to rethink its 

decision. From my colleagues’ denial of the requests for 

rehearing en banc, I respectfully dissent.