NOTE: This order is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

A&J MANUFACTURING, LLC AND A&J 

MANUFACTURING, INC.,

Appellants,

v.

UNITED STATES INTERNATIONAL 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 NEWMAN, DYK, and HUGHES, Circuit Judges. 

DYK, Circuit Judge. 

O R D E R

Case: 14-1742 Document: 25 Page: 1 Filed: 11/25/2014
2 A&J MANUFACTURING, LLC v. ITC

The International Trade Commission (“Commission”) 

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 Manufacturing, LLC and A&J Manufacturing, Inc. (“Appellants”) oppose the motion to dismiss but 

do not oppose a stay. 

This 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 asserting certain outdoor grill products infringed U.S. Patent 

No. 8,381,712 (“the ’712 patent”). On April 17, 2014, the 

Administrative Law Judge (“ALJ”) granted-in-part respondents’ 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, the Commission issued notice of its 

determination to affirm the ALJ’s findings of noninfringement 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-plusfunctions limitation. The Commission directed the ALJ to 

consider, in the first instance, whether the products 

infringed 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 determination of the Commission under subsection (d) . . . may 

appeal such determination, within 60 days after the 

determination 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 decidCase: 14-1742 Document: 25 Page: 2 Filed: 11/25/2014
 A&J MANUFACTURING, LLC v. ITC 3

ing whether or not to exclude articles from entry into the 

United States as a result of an investigation. 

By its terms, § 1337(c) requires: (1) that the Commission render a determination “under subsection (d),” namely, an “administrative 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 

determination is the “final determination of the Commission”; and (3) the person seeking appeal is “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 articles and Appellants were “adversely 

affected” by that decision, it is clear that the Commission 

has not yet issued a “final determination” as to whether to 

exclude the articles from entry under the ’712 patent. To 

the contrary, pursuant to that order, the 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 determination as to claims 1 

and 17 of the ’712 patent has been made, Appellants 

compare this case to Broadcom Corp. v. International 

Trade Commission, 542 F.3d 894 (Fed. Cir. 2008). There, 

this court allowed for an immediate appeal from a Commission’s determination that left “no provision for Presidential review, or for other administrative proceedings, 

following a determination that does not lead to an exclusion 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 determination as well as for products that the Commission denied 

summary determination. 

 

Case: 14-1742 Document: 25 Page: 3 Filed: 11/25/2014
4 A&J MANUFACTURING, LLC v. ITC

The circumstances here are far different than in 

Broadcom. The appellant in that case sought review after

the adoption of the ALJ’s conclusion that there had been 

no section 337 violation because respondents’ chipsets did 

not infringe the two patents in question. Id. The fact 

that there were no additional proceedings that could have 

precluded the allegedly infringing goods from being 

imported logically made the Commission’s decision its 

“final determination” for § 1337(c) purposes. 

In contrast, here, given the ongoing proceedings concerning whether the articles infringe the ’712 patent 

under a means-plus-function construction, 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. This simply means, as the Commission points out, that Appellants cannot seek review

until the Commission issues its final determination. 

Accordingly,

 IT IS ORDERED THAT: 

(1) The motion to dismiss is granted. 

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

(3) Each side shall bear its own costs.

 FOR THE COURT

 /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