N OTE : This o rder is non precedential.


# United States **Court of Appeals**  **for the Federal Circuit**

______________________
A&J MANUFACTURING, L LC AND A&J MANUFACTURING, INC., Appellants,

v.

UNITED STATES INTERN ATIONAL TRADE COMMISSION, Appellee,

AND

CHAR- BROIL, LLC,
Intervenor.

______________________

2014

- 1742

______________________
Appeal from the United States International Trade Commission in Investigation No. 337

- TA

- 895.

______________________

ON MOTION

______________________ Before N EWMAN , D YK
, and H UGHES
, C ircuit Judge s

. D YK
, Circuit Judge

. O R D E R Case: 14-1742 Document: 25 Page: 1 Filed: 11/25/2014A & J MANUFACTURING

, LLC v. ITC 2

The International Trade Commission (“C ommission”)
moves to dismiss this appeal as premature , or in the alternative to stay the appeal pending the Commission’s Final Determination regarding the other issues still pending . A&J Manufa c turing, LLC and A&J Manufactu ring, Inc. (“Appellants”) oppose the motion to dismiss but do not oppose a stay.

Thi s appeal arises out of an investigation by the Commission under section 337 of the Tariff Act of 1930, 19 U.S.C. § 1337. Appellants brought a complaint asser ting certain outdoor grill products infringed U.S. Patent No. 8,381,712 (“the ’712 patent”). On A pril 17, 2014, the Administrative Law Judge (“ALJ”) granted

- in

- part r espondents’ motion for summary determination regarding eight of those products, concluding that seven of the accused products do not infringe the asserted claims of
the ’712 patent and that there was a question of fact as to the remaining product.

On June 24, 2014, t he Commission issued notice of its determination to affirm the ALJ’s findings of noni nfringement of claims 1 and 17 of the ’712 patent with respect to four of the accused products, but vacated all of the ALJ’s findings with respect to claim 10 of the ’712 patent , concluding that the claim contained a means

- plus

functions limita tion. The Commission directed the ALJ to consider, in the first instance, whether the product s infring ed under its understanding of the limitation

. This appeal followed.

Section 1337(c) of Title 19 provides, in relevant part, that “[a]ny person adversely affected by a final determ ination of the Commission under subsection (d) . . . may appeal suc h determination, within 60 days after the determina tion becomes final, to the United States Court of Appeals for the Federal Circuit. ” 19 U.S.C. § 1337(c). Subsection (d) deals with orders of the Commission deci dCase: 14-1742 Document: 25 Page: 2 Filed: 11/25/2014A & J MANUFACTURING

, LLC v. ITC 3

ing whether or not to exclude articles fro m entry into the United States as a result of an investigation.

By its terms, § 1337(c) requires : (1) that the Commi ssion ren der a determination “ under subsection (d) ,” nam ely, an “admini strative decision . . . excluding or refusing to
exclude articles from entry,” Block v. Int’l Trade Comm’n

, 777 F.2d 1568, 1571 (Fed. Cir. 1985) ; (2) that exclusion determina tion i s the “final determination of the Commi ssion”; and (3) the person seeking appeal i s “adversely affected ” by that final determination.

Those requirements are not met here. Even though the Commission’s June 24, 2014 order did not result in the exclusion of arti cles and Appellants were “ adversely affected ” by that decision, it is clear that the Commission has not yet issued a “final determinatio n” as to whether to exclude the articles from entry under the ’712 patent . To the contrary, pursuant to that order, t he ALJ has been
directed to assess infringement of all of the accused products that were the subject of the Commission’s order

, which may or may not lead to a future exclusion order. *

Asserting that a final determina tion as to claims 1 and 17 of the ’712 patent has been made , Appellants

compare this case to Broadcom Corp. v. Int ernational Trade Commission , 542 F.3d 894 (Fed. Cir. 2008). T here, this court allowed for an immediate appeal from a Co mmission’s determination that left “no provision for Pres idential review, or for other administrative proceedings, following a determination that does not lead to an excl usion order.” Id. at 896 ( internal citation omitted).

* The Commission additionally notes that there are ongoing proceedings relating to accused products that were not subject to the motion for summary determin ation as well as for products that the Commission denied summary determination. Case: 14-1742 Document: 25 Page: 3 Filed: 11/25/2014A & J MANUFACTURING

, LLC v. ITC 4

T he circumstances here are far different than in
Broadcom . Th e appellant in that case sought review after the ad option of the ALJ’s conclu sion that there had been no section 337 viola tion because respondents’ chipsets did

not infringe the two patents in question

. Id. The fact that there were no additional proceedings that c ould ha ve precluded the allegedly infringing goods from being imported logically made the Commission’s decision its “final determination” for § 1337(c) pu rposes

. I n contrast, here, given the ongoing proceedings co ncerning whether the articles infringe the ’712 patent
under a means

- plus

- function con struction, the issue of whether Appellants can obtain an exclusion order is still before the Commission. As such , there has been no final determination under § 1337(c) that can be appealed to
this court at this time. T his simply means , as the Co mmission points out, that Appellants cannot seek review
until the Commission issues its final determination.

Accordingly,

I T I S O RDERED T HAT :
(1) The motion to dismiss is granted.

(2) The motion to stay is denied as moot.

(3) Each side shall bear its own costs.

F OR THE C OURT

/s/ Daniel E. O’Toole Daniel E. O’Toole Clerk of Court

s24

ISSUED AS A MANDATE: November 25, 2014 Case: 14-1742 Document: 25 Page: 4 Filed: 11/25/2014