Archives For Tariff Act

Khan & Slaughter Make ITC Filing Supporting Policies that Would Undermine SEPs and US Innovation

Alden Abbott —  23 May 2022

Federal Trade Commission (FTC) Chair Lina Khan recently joined with FTC Commissioner Rebecca Slaughter to file a “written submission on the public interest” in the U.S. International Trade Commission (ITC) Section 337 proceeding concerning imports of certain cellular-telecommunications equipment covered by standard essential patents (SEPs). SEPs are patents that “read on” technology adopted for inclusion in a standard. Regrettably, the commissioners’ filing embodies advice that, if followed, would effectively preclude Section 337 relief to SEP holders. Such a result would substantially reduce the value of U.S. SEPs and thereby discourage investments in standards that help drive American innovation.

Section 337 of the Tariff Act authorizes the ITC to issue “exclusion orders” blocking the importation of products that infringe U.S. patents, subject to certain “public interest” exceptions. Specifically, before issuing an exclusion order, the ITC must consider:

  1. the public health and welfare;
  2. competitive conditions in the U.S. economy;
  3. production of like or directly competitive articles in the United States; and
  4. U.S. consumers.

The Khan-Slaughter filing urges the ITC to consider the impact that issuing an exclusion order against a willing licensee implementing a standard would have on competition and consumers in the United States. The filing concludes that “where a complainant seeks to license and can be made whole through remedies in a different U.S. forum [a federal district court], an exclusion order barring standardized products from the United States will harm consumers and other market participants without providing commensurate benefits.”

Khan and Slaughter’s filing takes a one-dimensional view of the competitive effects of SEP rights. In short, it emphasizes that:

  1. standardization empowers SEP owners to “hold up” licensees by demanding more for a technology than it would have been worth, absent the standard;
  2. “hold ups” lead to higher prices and may discourage standard-setting activities and collaboration, which can delay innovation;
  3. many standard-setting organizations require FRAND (fair, reasonable, and non-discriminatory) licensing commitments from SEP holders to preclude hold-up and encourage standards adoption;
  4. FRAND commitments ensure that SEP licenses will be available at rates limited to the SEP’s “true” value;
  5. the threat of ITC exclusion orders would empower SEP holders to coerce licensees into paying “anticompetitively high” supra-FRAND licensing rates, discouraging investments in standard-compliant products;
  6. inappropriate exclusion orders harm consumers in the short term by depriving them of desired products and, in the longer run, through reduced innovation, competition, quality, and choice;
  7. thus, where the standard implementer is a “willing licensee,” an exclusion order would be contrary to the public interest; and
  8. as a general matter, exclusionary relief is incongruent and against the public interest where a court has been asked to resolve FRAND terms and can make the SEP holder whole.

In essence, Khan and Slaughter recite a parade of theoretical horribles, centered on anticompetitive hold-ups, to call-for denying exclusion orders to SEP owners on public-interest grounds. Their filing’s analysis, however, fails as a matter of empirics, law, and sound economics. 

First, the filing fails to note that there is a lack of empirical support for anticompetitive hold-up being a problem at all (see, for example, here, here, and here). Indeed, a far more serious threat is “hold-out,” whereby the ability of implementers to infringe SEPs without facing serious consequences leads to an inefficient undervaluation of SEP rights (see, for example, here). (At worst, implementers will have to pay at some future time a “reasonable” licensing fee if held to be infringers in court, since U.S. case law (unlike foreign case law) has essentially eliminated SEP holders’ ability to obtain an injunction.)  

Second, as a legal matter, the filing’s logic would undercut the central statutory purpose of Section 337, which is to provide all U.S. patent holders a right to exclude infringing imports. Section 337 does not distinguish between SEPs and other patents—all are entitled to full statutory protection. Former ITC Chair Deanna Tanner Okun, in critiquing a draft administration policy statement that would severely curtail the rights of SEP holders, assessed the denigration of Section 337 statutory protections in a manner that is equally applicable to the Khan-Slaughter filing:

The Draft Policy Statement also circumvents Congress by upending the statutory framework and purpose of Section 337, which includes the ITC’s practice of evaluating all unfair acts equally. Although the draft disclaims any “unique set of legal rules for SEPs,” it does, in fact, create a special and unequal analysis for SEPs. The draft also implies that the ITC should focus on whether the patents asserted are SEPs when judging whether an exclusion order would adversely affect the public interest. The draft fundamentally misunderstands the ITC’s purpose, statutory mandates, and overriding consideration of safeguarding the U.S. public interest and would — again, without statutory approval — elevate SEP status of a single patent over other weighty public interest considerations. The draft also overlooks Presidential review requirements, agency consultation opportunities and the ITC’s ability to issue no remedies at all.

[Notable,] Section 337’s statutory language does not distinguish the types of relief available to patentees when SEPs are asserted.

Third, Khan and Slaughter not only assert theoretical competitive harms from hold-ups that have not been shown to exist (while ignoring the far more real threat of hold-out), they also ignore the foregone dynamic economic gains that would stem from limitations on SEP rights (see, generally, here). Denying SEP holders the right to obtain a Section 337 exclusion order, as advocated by the filing, deprives them of a key property right. It thereby establishes an SEP “liability rule” (SEP holder relegated to seeking damages), as opposed to a “property rule” (SEP holder may seek injunctive relief) as the SEP holder’s sole means to obtain recompense for patent infringement. As my colleague Andrew Mercado and I have explained, a liability-rule approach denies society the substantial economic benefits achievable through an SEP property rule:

[U]nder a property rule, as contrasted to a liability rule, innovation will rise and drive an increase in social surplus, to the benefit of innovators, implementers, and consumers. 

Innovators’ welfare will rise. … First, innovators already in the market will be able to receive higher licensing fees due to their improved negotiating position. Second, new innovators enticed into the market by the “demonstration effect” of incumbent innovators’ success will in turn engage in profitable R&D (to them) that brings forth new cycles of innovation.

Implementers will experience welfare gains as the flood of new innovations enhances their commercial opportunities. New technologies will enable implementers to expand their product offerings and decrease their marginal cost of production. Additionally, new implementers will enter the market as innovation accelerates. Seeing the opportunity to earn high returns, new implementers will be willing to pay innovators a high licensing fee in order to produce novel and improved products.

Finally, consumers will benefit from expanded product offerings and lower quality-adjusted prices. Initial high prices for new goods and services entering the market will fall as companies compete for customers and scale economies are realized. As such, more consumers will have access to new and better products, raising consumers’ surplus.

In conclusion, the ITC should accord zero weight to Khan and Slaughter’s fundamentally flawed filing in determining whether ITC exclusion orders should be available to SEP holders. Denying SEP holders a statutorily provided right to exclude would tend to undermine the value of their property, diminish investment in improved standards, reduce innovation, and ultimately harm consumers—all to the detriment, not the benefit, of the public interest.  

In Antitrust & Competition, Federal Trade Commission, Intellectual Property, International, Patent, Telecommunications, Truth on the Market , , , , , , ,
permalink

The Tariff Act is indeed protectionist — and that’s how Congress wants it

Geoffrey Manne & Kristian Stout —  11 May 2018

Although not always front page news, International Trade Commission (“ITC”) decisions can have major impacts on trade policy and antitrust law. Scott Kieff, a former ITC Commissioner, recently published a thoughtful analysis of Certain Carbon and Alloy Steel Products — a potentially important ITC investigation that implicates the intersection of these two policy areas. Scott was on the ITC when the investigation was initiated in 2016, but left in 2017 before the decision was finally issued in March of this year.

Perhaps most important, the case highlights an uncomfortable truth:

Sometimes (often?) Congress writes really bad laws and promotes really bad policies, but administrative agencies can do more harm to the integrity of our legal system by abusing their authority in an effort to override those bad policies.

In this case, that “uncomfortable truth” plays out in the context of the ITC majority’s effort to override Section 337 of the Tariff Act of 1930 by limiting the ability of the ITC to investigate alleged violations of the Act rooted in antitrust.

While we’re all for limiting the ability of competitors to use antitrust claims in order to impede competition (as one of us has noted: “Erecting barriers to entry and raising rivals’ costs through regulation are time-honored American political traditions”), it is inappropriate to make an end-run around valid and unambiguous legislation in order to do so — no matter how desirable the end result. (As the other of us has noted: “Attempts to [effect preferred policies] through any means possible are rational actions at an individual level, but writ large they may undermine the legal fabric of our system and should be resisted.”)

Brief background

Under Section 337, the ITC is empowered to, among other things, remedy

Unfair methods of competition and unfair acts in the importation of articles… into the United States… the threat or effect of which is to destroy or substantially injure an industry in the United States… or to restrain or monopolize trade and commerce in the United States.

In Certain Carbon and Alloy Steel Products, the ITC undertook an investigation — at the behest of U.S. Steel Corporation — into alleged violations of Section 337 by the Chinese steel industry. The complaint was based upon a number of claims, including allegations of price fixing.

As ALJ Lord succinctly summarizes in her Initial Determination:

For many years, the United States steel industry has complained of unfair trade practices by manufacturers of Chinese steel. While such practices have resulted in the imposition of high tariffs on certain Chinese steel products, U.S. Steel seeks additional remedies. The complaint by U.S. Steel in this case attempts to use section 337 of the Tariff Act of 1930 to block all Chinese carbon and alloy steel from coming into the United States. One of the grounds that U.S. Steel relies on is the allegation that the Chinese steel industry violates U.S. antitrust laws.

The ALJ dismissed the antitrust claims (alleging violations of the Sherman Act), however, concluding that they failed to allege antitrust injury as required by US courts deciding Sherman Act cases brought by private parties under the Clayton Act’s remedial provisions:

Under federal antitrust law, it is firmly established that a private complainant must show antitrust standing [by demonstrating antitrust injury]. U.S. Steel has not alleged that it has antitrust standing or the facts necessary to establish antitrust standing and erroneously contends it need not have antitrust standing to allege the unfair trade practice of restraining trade….

In its decision earlier this year, a majority of ITC commissioners agreed, and upheld the ALJ’s Initial Determination.

In comments filed with the ITC following the ALJ’s Initial Determination, we argued that the ALJ erred in her analysis:

Because antitrust injury is not an express requirement imposed by Congress, because ITC processes differ substantially from those of Article III courts, and because Section 337 is designed to serve different aims than private antitrust litigation, the Commission should reinstate the price fixing claims and allow the case to proceed.

Unfortunately, in upholding the Initial Determination, the Commission compounded this error, and also failed to properly understand the goals of the Tariff Act, and, by extension, its own role as arbiter of “unfair” trade practices.

A tale of two statutes

The case appears to turn on an arcane issue of adjudicative process in antitrust claims brought under the antitrust laws in federal court, on the one hand, versus antitrust claims brought under the Section 337 of the Tariff Act at the ITC, on the other. But it is actually about much more: the very purposes and structures of those laws.

The ALJ notes that

[The Chinese steel manufacturers contend that] under antitrust law as currently applied in federal courts, it has become very difficult for a private party like U.S. Steel to bring an antitrust suit against its competitors. Steel accepts this but says the law under section 337 should be different than in federal courts.

And as the ALJ further notes, this highlights the differences between the two regimes:

The dispute between U.S. Steel and the Chinese steel industry shows the conflict between section 337, which is intended to protect American industry from unfair competition, and U.S. antitrust laws, which are intended to promote competition for the benefit of consumers, even if such competition harms competitors.

Nevertheless, the ALJ (and the Commission) holds that antitrust laws must be applied in the same way in federal court as under Section 337 at the ITC.

It is this conclusion that is in error.

Judging from his article, it’s clear that Kieff agrees and would have dissented from the Commission’s decision. As he writes:

Unlike the focus in Section 16 of the Clayton Act on harm to the plaintiff, the provisions in the ITC’s statute — Section 337 — explicitly require the ITC to deal directly with harms to the industry or the market (rather than to the particular plaintiff)…. Where the statute protects the market rather than the individual complainant, the antitrust injury doctrine’s own internal logic does not compel the imposition of a burden to show harm to the particular private actor bringing the complaint. (Emphasis added)

Somewhat similar to the antitrust laws, the overall purpose of Section 337 focuses on broader, competitive harm — injury to “an industry in the United States” — not specific competitors. But unlike the Clayton Act, the Tariff Act does not accomplish this by providing a remedy for private parties alleging injury to themselves as a proxy for this broader, competitive harm.

As Kieff writes:

One stark difference between the two statutory regimes relates to the explicit goals that the statutes state for themselves…. [T]he Clayton Act explicitly states it is to remedy harm to only the plaintiff itself. This difference has particular significance for [the Commission’s decision in Certain Carbon and Alloy Steel Products] because the Supreme Court’s source of the private antitrust injury doctrine, its decision in Brunswick, explicitly tied the doctrine to this particular goal.

More particularly, much of the Court’s discussion in Brunswick focuses on the role the [antitrust injury] doctrine plays in mitigating the risk of unjustly enriching the plaintiff with damages awards beyond the amount of the particular antitrust harm that plaintiff actually suffered. The doctrine makes sense in the context of the Clayton Act proceedings in federal court because it keeps the cause of action focused on that statute’s stated goal of protecting a particular litigant only in so far as that party itself is a proxy for the harm to the market.

By contrast, since the goal of the ITC’s statute is to remedy for harm to the industry or to trade and commerce… there is no need to closely tie such broader harms to the market to the precise amounts of harms suffered by the particular complainant. (Emphasis and paragraph breaks added)

The mechanism by which the Clayton Act works is decidedly to remedy injury to competitors (including with treble damages). But because its larger goal is the promotion of competition, it cabins that remedy in order to ensure that it functions as an appropriate proxy for broader harms, and not simply a tool by which competitors may bludgeon each other. As Kieff writes:

The remedy provisions of the Clayton Act benefit much more than just the private plaintiff. They are designed to benefit the public, echoing the view that the private plaintiff is serving, indirectly, as a proxy for the market as a whole.

The larger purpose of Section 337 is somewhat different, and its remedial mechanism is decidedly different:

By contrast, the provisions in Section 337[] are much more direct in that they protect against injury to the industry or to trade and commerce more broadly. Harm to the particular complainant is essentially only relevant in so far as it shows harm to the industry or to trade and commerce more broadly. In turn, the remedies the ITC’s statute provides are more modest and direct in stopping any such broader harm that is determined to exist through a complete investigation.

The distinction between antitrust laws and trade laws is firmly established in the case law. And, in particular, trade laws not only focus on effects on industry rather than consumers or competition, per se, but they also contemplate a different kind of economic injury:

The “injury to industry” causation standard… focuses explicitly upon conditions in the U.S. industry…. In effect, Congress has made a judgment that causally related injury to the domestic industry may be severe enough to justify relief from less than fair value imports even if from another viewpoint the economy could be said to be better served by providing no relief. (Emphasis added)

Importantly, under Section 337 such harms to industry would ultimately have to be shown before a remedy would be imposed. In other words, demonstration of injury to competition is a constituent part of a case under Section 337. By contrast, such a demonstration is brought into an action under the antitrust laws by the antitrust injury doctrine as a function of establishing that the plaintiff has standing to sue as a proxy for broader harm to the market.

Finally, it should be noted, as ITC Commissioner Broadbent points out in her dissent from the Commission’s majority opinion, that U.S. Steel alleged in its complaint a violation of the Sherman Act, not the Clayton Act. Although its ability to enforce the Sherman Act arises from the remedial provisions of the Clayton Act, the substantive analysis of its claims is a Sherman Act matter. And the Sherman Act does not contain any explicit antitrust injury requirement. This is a crucial distinction because, as Commissioner Broadbent notes (quoting the Federal Circuit’s Tianrui case):

The “antitrust injury” standing requirement stems, not from the substantive antitrust statutes like the Sherman Act, but rather from the Supreme Court’s interpretation of the injury elements that must be proven under sections 4 and 16 of the Clayton Act.

* * *

Absent [] express Congressional limitation, restricting the Commission’s consideration of unfair methods of competition and unfair acts in international trade “would be inconsistent with the congressional purpose of protecting domestic commerce from unfair competition in importation….”

* * *

Where, as here, no such express limitation in the Sherman Act has been shown, I find no legal justification for imposing the insurmountable hurdle of demonstrating antitrust injury upon a typical U.S. company that is grappling with imports that benefit from the international unfair methods of competition that have been alleged in this case.

Section 337 is not a stand-in for other federal laws, even where it protects against similar conduct, and its aims diverge in important ways from those of other federal laws. It is, in other words, a trade protection provision, first and foremost, not an antitrust law, patent law, or even precisely a consumer protection statute.

The ITC hamstrings Itself

Kieff lays out a number of compelling points in his paper, including an argument that the ITC was statutorily designed as a convenient forum with broad powers in order to enable trade harms to be remedied without resort to expensive and protracted litigation in federal district court.

But, perhaps even more important, he points to a contradiction in the ITC’s decision that is directly related to its statutory design.

Under the Tariff Act, the Commission is entitled to self-initiate a Section 337 investigation identical to the one in Certain Alloy and Carbon Steel Products. And, as in this case, private parties are also entitled to file complaints with the Commission that can serve as the trigger for an investigation. In both instances, the ITC itself decides whether there is sufficient basis for proceeding, and, although an investigation unfolds much like litigation in federal court, it is, in fact, an investigation (and decision) undertaken by the ITC itself.

Although the Commission is statutorily mandated to initiate an investigation once a complaint is properly filed, this is subject to a provision requiring the Commission to “examine the complaint for sufficiency and compliance with the applicable sections of this Chapter.” Thus, the Commission conducts a preliminary investigation to determine if the complaint provides a sound basis for institution of an investigation, not unlike an assessment of standing and evaluation of the sufficiency of a complaint in federal court — all of which happens before an official investigation is initiated.

Yet despite the fact that, before an investigation begins, the ITC either 1) decides for itself that there is sufficient basis to initiate its own action, or else 2) evaluates the sufficiency of a private complaint to determine if the Commission should initiate an action, the logic of the decision in Certain Alloy and Carbon Steel Products would apply different standards in each case. Writes Kieff:

There appears to be broad consensus that the ITC can self-initiate an antitrust case under Section 337 and in such a proceeding would not be required to apply the antitrust injury doctrine to itself or to anyone else…. [I]t seems odd to make [this] legal distinction… After all, if it turned out there really were harm to a domestic industry or trade and commerce in this case, it would be strange for the ITC to have to dismiss this action and deprive itself of the benefit of the advance work and ongoing work of the private party [just because it was brought to the ITC’s attention by a private party complaint], only to either sit idle or expend the resources to — flying solo that time — reinitiate and proceed to completion.

Odd indeed, because, in the end, what is instituted is an investigation undertaken by the ITC — whether it originates from a private party or from its own initiative. The role of a complaining party before the ITC is quite distinct from that of a plaintiff in an Article III court.

In trade these days, it always comes down to China

We are hesitant to offer justifications for Congress’ decision to grant the ITC a sweeping administrative authority to prohibit the “unfair” importation of articles into the US, but there could be good reasons that Congress enacted the Tariff Act as a protectionist statute.

In a recent Law360 article, Kieff noted that analyzing anticompetitive behavior in the trade context is more complicated than in the domestic context. To take the current example: By limiting the complainant’s ability to initiate an ITC action based on a claim that foreign competitors are conspiring to keep prices artificially low, the ITC majority decision may be short-sighted insofar as keeping prices low might actually be part of a larger industrial and military policy for the Chinese government:

The overlooked problem is that, as the ITC petitioners claim, the Chinese government is using its control over many Chinese steel producers to accomplish full-spectrum coordination on both price and quantity. Mere allegations of course would have to be proven; but it’s not hard to imagine that such coordination could afford the Chinese government effective surveillance and control over  almost the entire worldwide supply chain for steel products.

This access would help the Chinese government run significant intelligence operations…. China is allegedly gaining immense access to practically every bid and ask up and down the supply chain across the global steel market in general, and our domestic market in particular. That much real-time visibility across steel markets can in turn give visibility into defense, critical infrastructure and finance.

Thus, by taking it upon itself to artificially narrow its scope of authority, the ITC could be undermining a valid congressional concern: that trade distortions not be used as a way to allow a foreign government to gain a more pervasive advantage over diplomatic and military operations.

No one seriously doubts that China is, at the very least, a supportive partner to much of its industry in a way that gives that industry some potential advantage over competitors operating in countries that receive relatively less assistance from national governments.

In certain industries — notably semiconductors and patent-intensive industries more broadly — the Chinese government regularly imposes onerous conditions (including mandatory IP licensing and joint ventures with Chinese firms, invasive audits, and obligatory software and hardware “backdoors”) on foreign tech companies doing business in China. It has long been an open secret that these efforts, ostensibly undertaken for the sake of national security, are actually aimed at protecting or bolstering China’s domestic industry.

And China could certainly leverage these partnerships to obtain information on a significant share of important industries and their participants throughout the world. After all, we are well familiar with this business model: cheap or highly subsidized access to a desired good or service in exchange for user data is the basic description of modern tech platform companies.

Only Congress can fix Congress

Stepping back from the ITC context, a key inquiry when examining antitrust through a trade lens is the extent to which countries will use antitrust as a non-tariff barrier to restrain trade. It is certainly the case that a sort of “mutually assured destruction” can arise where every country chooses to enforce its own ambiguously worded competition statute in a way that can favor its domestic producers to the detriment of importers. In the face of that concern, the impetus to try to apply procedural constraints on open-ended competition laws operating in the trade context is understandable.

And as a general matter, it also makes sense to be concerned when producers like U.S. Steel try to use our domestic antitrust laws to disadvantage Chinese competitors or keep them out of the market entirely.

But in this instance the analysis is more complicated. Like it or not, what amounts to injury in the international trade context, even with respect to anticompetitive conduct, is different than what’s contemplated under the antitrust laws. When the Tariff Act of 1922 was passed (which later became Section 337) the Senate Finance Committee Report that accompanied it described the scope of its unfair methods of competition authority as “broad enough to prevent every type and form of unfair practice” involving international trade. At the same time, Congress pretty clearly gave the ITC the discretion to proceed on a much less-constrained basis than that on which Article III courts operate.

If these are problems, Congress needs to fix them, not the ITC acting sua sponte.

Moreover, as Kieff’s paper (and our own comments in the Certain Alloy and Carbon Steel Products investigation) make clear, there are also a number of relevant, practical distinctions between enforcement of the antitrust laws in a federal court in a case brought by a private plaintiff and an investigation of alleged anticompetitive conduct by the ITC under Section 337. Every one of these cuts against importing an antitrust injury requirement from federal court into ITC adjudication.

Instead, understandable as its motivation may be, the ITC majority’s approach in Certain Alloy and Carbon Steel Products requires disregarding Congressional intent, and that’s simply not a tenable interpretive approach for administrative agencies to take.

Protectionism is a terrible idea, but if that’s how Congress wrote the Tariff Act, the ITC is legally obligated to enforce the protectionist law it is given.

In Antitrust & Competition, Barriers to Entry, China, Corporate & Securities Law, Intellectual Property, International, International Trade, Patent , , , , , , , , , , , , , , ,
permalink

Developing an Economically Efficient American Trade Policy to Deal with Distortionary Government Subsidies: Brexit and Beyond

Alden Abbott —  27 September 2017

U.S. international trade law has various statutory mechanisms to deal with unfair competition.  Regrettably, American trade law (and, for that matter, the trade laws of other nations) has a history of being deployed in a mercantilist fashion to further the interests of American producer interests, rather than consumer interests and aggregate economic welfare.  That need not, however, necessarily be the case.

For example, instead of penalizing more efficient imports, American antidumping law could be reoriented to deal only with true predatory pricing, thereby promoting free market interests (see my proposal here).  And section 337 of the Tariff Act, directed at “unfair methods of competition” in import trade, could be employed in a non-protectionist manner that enhances market efficiency by focusing exclusively on foreign harm to U.S. intellectual property (IP) rights (see my proposal here).

Countervailing duty (CVD) law, which applies tariffs to counteract foreign government subsidies, could be a force for eliminating government-imposed competitive distortions – and for discouraging governments from conferring subsidies to favored industries or firms in the first place.  In practice, however, significant distortive government subsidies to key industries have persisted in the face of CVD statutes.  The application of countervailing duties and the raising of CVD disputes to the World Trade Organization have proven to be inadequate in curbing governments’ persistent efforts to subsidize corporate favorites, while preventing trading partners from bestowing similar largesse on their national champions.

Among the beneficiaries of major subsidies that lead to international trade disputes, the commercial aircraft sector, dominated by the longstanding Boeing and Airbus duopoly, stands out.  A recent article by trade law expert Shanker Singham, Director of Economic Policy and Prosperity Studies at the United Kingdom’s Legatum Institute, highlights the economic deficiencies revealed by the most recent battle in the ongoing commercial aircraft “subsidies war” saga.

Specifically, Singham suggests reforming countervailable subsidies with a “trade remedy law based on evaluating distortions and their effects”.  Singham’s article, “America’s Protectionism Is Damaging British Interests,” is worth a careful read:

Theresa May was recently in Canada meeting the Canadian PM, Justin Trudeau, to discuss how theyshould react to a trade case that Boeing has brought against Bombardier, Canada’s aerospace manufacturer. The case could affect 4,000 jobs in Bombardier’s Belfast facility. From Belfast, this might look like the vagaries of international trade, but the real story runs deeper.

Competition among producers of aircraft has been fierce, and has also been often accompanied by complaints about state subsidies and other trade distortions. Civil aviation is a sector that has been plagued by government interventions all over the world, and to say that the playing field is not level is an understatement.

While Airbus subsidies are its usual target, Boeing has recently turned its fire onto Bombardier, claiming that the Canadian jet manufacturer has dumped product into the US market. Boeing is citing US trade remedy laws, the price-based focus of which makes them prone to this sort of protectionist abuse.

The UK has been dragged in to the row because jobs in Belfast depend on the production of key inputs into the Bombardier plane. So just as the people of Northern Ireland are struggling with Brexit, they face a fresh concern not of their own making.

Our recently released [Legatum Institute] paper on Northern Ireland discusses the need to find ways of promoting economic activity in Northern Ireland using Special Economic Zones, among other ways of minimising the costs of Brexit. And one idea is that the people of Northern Ireland should benefit from UK-US trade agreements as we set out in our Transatlantic partnership paper.

But allowing the abuse of notoriously protectionist trade remedy laws in the US to have a completely unjustifiable and knock-on effect in Northern Ireland would not indicate the good UK-US trade relations that the Trump administration has promised.

The Prime Minister has recognised the danger, and raised the issue in a call with President Trump, as well with Trudeau this week. Voices within her own party, and the media, are calling for her to take a tougher line against Boeing to protect those jobs in Northern Ireland, and others in the supply chain across the UK.

But what could the Prime Minister do?

The case highlights the trade barrier that the trade remedies themselves pose and shows why reform is necessary. Given that new UK trade remedy laws must be developed as a result of Brexit, and the US-UK agreement, here is an excellent opportunity to deal with those government interventions that distort trade by focusing on the source of the problem – and not on pricing (as current trade remedy laws do).

For trade to be fair, we need to make sure that distortions are reduced in all our markets, and that any trade remedies we use are designed to deal with these distortions.

In the case of the production of aircraft (large-body), Boeing and Airbus have been at each other’s throats, each maintaining that the other is subsidised or supported by governments. Recently, Airbus lost a case in the WTO where it was arguing that Boeing’s Washington state incentives violated WTO rules on subsidies. That case was in response to a series of cases which Boeing had brought against Airbus. It highlights the problem of the WTO’s approach to subsidies and government support in general.

Whether the government privilege or grant is given federally or through a state, what matters is whether the cost of production has been reduced by ordinary business processes and efficiency, or whether in fact it has been reduced through government action. Viewed through this lens, very few aircraft manufacturers have clean hands.

However, while these distortions abound, bringing trade remedy cases that ignore the complainants’ own network of distortions and subsidies is patently unfair. The Boeing case has effects in Canada, but because we are in a world of competing global supply chains, these effects reverberate around the world.

All the suppliers to Bombardier, including those based in Northern Ireland, are adversely affected when US firms use the US trade remedy laws to damage trade between nations. These laws were written at a time when we did not live in a world of global supply chains, but rather a world where firms produced products in country A and sold them in country B.  They do not fit within our new world of complex supply chains.

It is high time that countries around the world ensured that their domestic policies and their external trade policies lined up. Countries such as the US cannot argue that they intend to do trade deals with the UK, if their domestic measures damage the interests of that trading partner.

In fact, the UK and the US have an opportunity here to use trade remedy measures to attack products from companies whose costs are artificially lowered as a result of government distortion, as opposed to being more competitive. Boeing’s case, however, does not differentiate between the two – which is why it is flawed.

In the UK, there is talk of using a public interest test in the application of trade remedy laws. Such a test could look at the impact of the use of these remedies on international trade and on consumers.

Theresa May has argued for industrial strategy in ways that give those of us who believe in the power of free trade and free markets pause. But in this case, the most basic industrial strategy has to be to defend UK production, such as the plant in Belfast, from the effects of distortions in other markets, and the abuse of trade remedy laws.

A trade remedy law based on evaluating distortions and their effects would prevent this. It is something the UK and US may be able to agree, and it is certainly something that the UK could lead on by example.

If the UK government seeks to protect its workers in this case, this should not be seen as a protectionist gesture.  It would be a necessary response to US protectionism. As long as countries maintain laws on their books that allow consumers to be damaged, and supply chains to be adversely affected, countries may seek to use other means to retaliate against the offender.

World trade is under sufficient threat, at the moment not to freight it down with additional and quite unnecessary challenges, such as over-vigorous use of anti-dumping laws. The UK has a great opportunity to lead this debate as it formulates its own independent trade policy.

As Singham’s article suggests, U.S.-UK free trade negotiations made possible by Brexit create the possibility for the reformulation of American CVD law to focus on actual distortions of competition.  CVD assessments calibrated precisely to the amount of the foreign government’s distortionary subsidy, applied first in the context of US-UK trade, could serve as a model for the more general reform of American (and UK) CVD law.  This in turn might serve as a template for more general CVD reform, through bilateral or plurilateral deals – and perhaps eventually a global deal under the auspices of the World Trade Organization.  Think big.

 

In Intellectual Property, International, International Trade, Patent, Truth on the Market, United Kingdom , , ,
permalink

Combatting Foreign Theft of U.S. IP Theft by Strengthening Section 337 of the Tariff Act – and Making it an “IP Only” Statute

Alden Abbott —  3 June 2016

Public policies that rely on free-market forces and avoid government interventions that distort terms of international trade benefit producers, consumers, and national economies alike.  The  full benefits of international trade will not be realized, however, if sales and purchase decisions are distorted by anticompetitive behavior or other illegitimate commercial conduct (such as theft, fraud, or deceit) that undermines market forces.  Thus, the importation of goods produced through the theft of U.S. property, including intangible “intellectual property” (including, for example, patents, copyrights, and trademarks), distorts the market and merits being curbed.

The provision of U.S. trade law that is targeted most specifically at anticompetitive and other harmful business conduct affecting American imports is Section 337 of the Tariff Act of 1930, which is administered by the U.S. International Trade Commission (USITC).  Section 337 condemns as illegal imports that violate U.S. intellectual property (IP) rights related to a U.S. industry or involve “unfair methods of competition and unfair acts” that harm a U.S. industry.  The standard remedy for a Section 337 violation is the issuance of an order excluding the offending imports from the U.S. market.  As I explain in a Heritage Foundation “Backgrounder” published on June 2, 2016, congressional consideration of reforms that address policy constraints on its application, potential limitations on its reach, and the breadth of the conduct it covers could help Section 337 to become an even more valuable tool with which to protect U.S. IP rights and combat truly unfair competition in a manner that is consistent with general free trade principles.

More specifically, while Section 337 should be judiciously modified to make it an even more effective weapon against foreign theft of U.S. IP rights, it should at the same time be amended so that it cannot be applied in a protectionist manner to curb vigorous and legitimate competition from abroad.  The U.S. antitrust laws are well designed to deal with legitimate cases of anticompetitive foreign business activity not involving IP.  Moreover, the USITC’s brief (and unsuccessful) experimentation during the 1970s with non-IP-related investigations revealed that Section 337, if not appropriately cabined, had a welfare-inimical protectionist potential.  That potential will remain unless and until Section 337 is amended to make it an “IP theft only” statute.

My June 2 Backgrounder concludes as follows:

Section 337 of the Tariff Act of 1930 provides valuable relief to American IP holders whose property rights are undermined by infringing imports. In many cases, Section 337 may be the only truly effective means by which industries that depend on U.S. IP can protect their interests and compete on an undistorted playing field with imported products. Nevertheless, a few carefully tailored amendments to the statute could render it even more effective. Specifically, Congress should seriously consider language that would:

  • Clarify that Section 337 covers all imports, both intangible (such as electronic data compilations) and tangible;
  • Specify that it applies to import schemes aimed at infringing IP rights, even if there is no direct infringement at the precise time of importation;
  • Limit the President’s unreviewable discretion to overturn Section 337 exclusion orders, except on grounds of public health or safety; and
  • Eliminate Section 337’s application to non-IP-related import practices.

Adoption of reforms along these lines could make Section 337 an even more effective tool with which to protect U.S. IP rights in international trade and ensure that Section 337 is applied in a procompetitive, pro-consumer fashion. Such reforms would enhance the role of Section 337 as a law that supports American innovation and economic growth in a manner that is consistent with free trade principles.

In Copyright, Intellectual Property, International, International Trade, Patent, Truth on the Market , , , , ,
permalink

Geoffrey Manne at Cato to Discuss the Federal Circuit’s Error in ClearCorrect

Kristian Stout —  8 December 2015

Tomorrow, Geoffrey Manne, Executive Director of the International Center for Law & Economics, will be a panelist at the Cato Institute’s Policy Forum, “The ITC and Digital Trade: The ClearCorrect Decision.”  He will be joined by Sapna Kumar, Associate Professor, University of Houston Law Center and Shara Aranoff, Of Counsel, Covington and Burling LLP, and former Chairman of the U.S. International Trade Commission (“ITC”).

The forum is focused on a recent Federal Circuit decision, ClearCorrect v. ITC, in which a divided three judge panel overturned a 5-1 majority decision of the ITC holding that the Tariff Act granted it the power to prevent the importation of digital articles that infringe a valid U.S. patent. Key to the Federal Circuit’s decision was a hyper-textualist parsing of the term “article” as understood in 1929–a move that stands in stark contrast to the Federal Circuit’s recent en banc decision in Suprema, which was crucially based on a wider reading of the context of the Tariff Act in order to understand the the full meaning of the phrase “articles … that infringe” as contained therein.

Critics of the ITC’s interpretation in this matter contend that such jurisdiction would somehow grant the ITC the power to regulate the Internet. However, far from being an expansive power grab, the ITC’s decision was in fact well reasoned and completely consistent with the Tariff Act and Congressional intent. Nonetheless, this remains an important case because the cost of the Federal Circuit’s error could be very high given the importance of IP to the national economy.

Full details on the event:

“The ITC and Digital Trade: The ClearCorrect Decision”
Wednesday, December 9, 2015 at 12 PM EDT.
F. A. Hayek Auditorium (located on the lobby level of the Cato Institute)
1000 Massachusetts Ave., N.W.
Washington, D.C.

Registration begins at 11:30 a.m.

 

More from us on this and related topics:

False Teeth: Why An ITC Case Won’t Chew Up The Internet (Forbes)

Suprema v. ITC: The Case for Chevron Deference

The Federal Circuit Misapplies Chevron Deference (and Risks a Future “Supreme Scolding”) in Suprema Inc. v. ITC

 

In Administrative Law, Copyright, Intellectual Property, International, International Center for Law & Economics, International Trade, Patent, Truth on the Market , , , , ,
permalink

The Federal Circuit Fails to Connect Clearly with Modern Technology by Protecting Infringing Data Imports

Alden Abbott —  10 November 2015

Today, in ClearCorrect Operating, LLC v. International Trade Commission, the U.S. Court of Appeals for the Federal Circuit held that electronic transmissions of digital data from abroad do not involve the importation of “articles” for purposes of Section 337 of the Tariff Act (“Section 337,” 19 U.S.C. § 1337), thereby stripping the U.S. International Trade Commission (“ITC”) of jurisdiction over infringement of intellectual property (IP) facilitated through such transmissions.  If allowed to stand, this unfortunate and ill-reasoned 2-1 panel decision will incentivize IP infringement schemes involving data imports, thereby harming U.S. IP holders (including holders of federally-protected patents, copyrights, trademarks, and designs) and rewarding unfair methods of import competition, contrary to the broad statutory purpose of Section 337.

Align Technology, Inc. held various patents covering the production of orthodontic tooth-straightening appliances, known as aligners.  ClearCorrect Operating, LLC (“ClearCorrect US”) used patented Align Technology without authorization to create digital models of patients’ teeth, and electronically transmitted those models to its Pakistani affiliate, Clear Correct Pakistan.  The Pakistani affiliate manipulated those models and then transmitted final digital models back to the United States, which ClearCorrect US utilized to make orthodontic aligners.  Align Technology complained to the ITC, which found that Clear Correct Pakistan engaged in infringing activity in Pakistan and that data transmission of its digital models to the U.S. violated Section 337(a)(1)(B)(ii), in that it involved the importation of articles covered by the claims of a valid and enforceable United States patent.  ClearCorrect appealed the ITC’s determination to the Federal Circuit.

Judge Sharon Prost’s majority opinion, while conceding that the term “articles” is not defined in the Tariff Act, nevertheless found that because “dictionaries point to the fact that ‘articles’ means ‘material things’”, the term “’articles’ does not cover electronically transmitted digital data.”  Thus, finding the term “articles” to be clear (“commonsense dictates that there is a fundamental difference between electronic transmissions and ‘material things[.]’”), Judge Prost rejected the ITC’s findings under step one (is there statutory ambiguity) of Chevron deference analysis.  Even assuming that “articles” is ambiguous, however, Judge Prost held that the ITC’s interpretation of that term was “unreasonable,” and thus failed step two (was the agency’s interpretation permissible) of Chevron analysis.  Specifically, Judge Prost deemed the ITC’s definition as inconsistent with dictionary definitions and with the Tariff Act’s legislative history.

In her short concurring opinion, Judge Kathleen O’Malley reasoned that the ITC’s definition of “articles” would give it jurisdiction over all incoming international Internet data transmissions, something Congress had not foreseen – “[b]ecause Congress did not intend to delegate such authority to the Commission, I would find the two step Chevron inquiry inapplicable in this case”.  Judge O’Malley added, however, that assuming Chevron applies, “I agree with the majority’s ruling that the Commission erred when it determined that it had jurisdiction over the disputed digital data.”  (Judge O’Malley’s apparent concern that upholding the ITC’s determination would have given that agency excessive regulatory control over the Internet appears to wrongly conflate the protection of property rights through a targeted and carefully-tailored provision (Section 337) with far-reaching command and control regulation – something that is clearly beyond the scope of the ITC’s authority.)

In her dissent, Judge Pauline Newman pointed out that Section 337 was written in broad terms that are adaptable to changes in technology.  She noted compellingly that contrary to the majority’s crabbed reading of “articles,” the term “was intended to be all-encompassing”, and “[t]he Supreme Court [itself] defined ‘articles of commerce’ to include pure information”.  Accordingly, limiting Section 337’s application to the non-digital technology that existed in the 1920s and 1930s (when the statutory core of the Tariff Act was enacted) makes no sense.  Summing it up, Judge Newman trenchantly concluded that “[o]n any standard, the Commission’s determination is reasonable, and warrants respect.  The panel majority’s contrary ruling is not reasonable, on any standard.”

U.S. patentees are not the only IP holders that face serious harm from the Federal Circuit’s regrettable holding.  For example, the Motion Picture Association of America stated that “[t]his ruling, if it stands, would appear to reduce the authority of the ITC to address the scourge of overseas web sites that engage in blatant piracy of movies, television programs, music, books, and other copyrighted works”.

An en banc Federal Circuit (or, better yet Supreme Court) reversal of this decision would prove helpful, but judicial processes move slowly.  Given the potential for serious harm to U.S. IP-dependent industries stemming from this holding, Congress may wish to seriously consider clarifying that the term “articles” in Section 337 is applicable to all forms of commerce, including digital transmissions.

In Copyright, Intellectual Property, International, International Trade, Patent, Supreme Court , , , , ,
permalink

Suprema v. ITC: The Case for Chevron Deference

Geoffrey Manne & Kristian Stout —  28 August 2015

Recently, the en banc Federal Circuit decided in Suprema, Inc. v. ITC that the International Trade Commission could properly prevent the importation of articles that infringe under an indirect liability theory. The core of the dispute in Suprema was whether § 337 of the Tariff Act’s prohibition against “importing articles that . . . infringe a valid and enforceable United States patent” could be used to prevent the importation of articles that at the moment of importation were not (yet) directly infringing. In essence, is the ITC limited to acting only when there is a direct infringement, or can it also prohibit articles involved in an indirect infringement scheme — in this case under an inducement theory?

TOTM’s own Alden Abbott posted his view of the decision, and there are a couple of points we’d like to respond to, both embodied in this quote:

[The ITC’s Suprema decision] would likely be viewed unfavorably by the Supreme Court, which recently has shown reluctance about routinely invoking Chevron deference … Furthermore, the en banc majority’s willingness to find inducement liability at a time when direct patent infringement has not yet occurred (the point of importation) is very hard to square with the teachings of [Limelight v.] Akamai.

In truth, we are of two minds (four minds?) regarding this view. We’re deeply sympathetic with arguments that the Supreme Court has become — and should become — increasingly skeptical of blind Chevron deference. Recently, we filed a brief on the 2015 Open Internet Order that, in large part, argued that the FCC does not deserve Chevron deference under King v. Burwell, UARG v. EPA and Michigan v. EPA (among other important cases) along a very similar line of reasoning. However, much as we’d like to generally scale back Chevron deference, in this case we happen to think that the Federal Circuit got it right.

Put simply, “infringe” as used in § 337 plainly includes indirect infringement. Section 271 of the Patent Act makes it clear that indirect infringers are guilty of “infringement.” The legislative history of the section, as well as Supreme Court case law, makes it very clear that § 271 was a codification of both direct and indirect liability.

In taxonomic terms, § 271 codifies “infringement” as a top-level category, with “direct infringement” and “indirect infringement” as two distinct subcategories of infringement. The law further subdivides “indirect infringement” into sub-subcategories, “inducement” and “contributory infringement.” But all of these are “infringement.”

For instance, § 271(b) says that “[w]hoever actively induces infringement of a patent shall be liable as an infringer” (emphasis added). Thus, in terms of § 271, to induce infringement is to commit infringement within the meaning of the patent laws. And in § 337, assuming it follows § 271 (which seems appropriate given Congress’ stated purpose to “make it a more effective remedy for the protection of United States intellectual property rights” (emphasis added)), it must follow that when one imports “articles… that infringe” she can be liable for either (or both) § 271(a) direct infringement or § 271(b) inducement.

Frankly, we think this should end the analysis: There is no Chevron question here because the Tariff Act isn’t ambiguous.

But although it seems clear on the face of § 337 that “infringe” must include indirect infringement, at the very least § 337 is ambiguous and cannot clearly mean only “direct infringement.” Moreover, the history of patent law as well as the structure of the ITC’s powers both cut in favor of the ITC enforcing the Tariff Act against indirect infringers. The ITC’s interpretation of any ambiguity in the term “articles… that infringe” is surely reasonable.

The Ambiguity and History of § 337 Allows for Inducement Liability

Assuming for argument’s sake that § 337’s lack of specificity leaves room for debate as to what “infringe” means, there is nothing that militates definitively against indirect liability being included in § 337. The majority handles any ambiguity of this sort well:

[T]he shorthand phrase “articles that infringe” does not unambiguously exclude inducement of post-importation infringement… By using the word “infringe,” § 337 refers to 35 U.S.C. § 271, the statutory provision defining patent infringement. The word “infringe” does not narrow § 337’s scope to any particular subsections of § 271. As reflected in § 271 and the case law from before and after 1952, “infringement” is a term that encompasses both direct and indirect infringement, including infringement by importation that induces direct infringement of a method claim… Section 337 refers not just to infringement, but to “articles that infringe.” That phrase does not narrow the provision to exclude inducement of post-importation infringement. Rather, the phrase introduces textual uncertainty.

Further, the court notes that it has consistently held that inducement is a valid theory of liability on which to base § 337 cases.

And lest you think that this interpretation would give some new, expansive powers to the ITC (perhaps meriting something like a Brown & Williamson exception to Chevron deference), the ITC is still bound by all the defenses and limitations on indirect liability under § 271. Saying it has authority to police indirect infringement doesn’t give it carte blanche, nor any more power than US district courts currently have in adjudicating indirect infringement. In this case, the court went nowhere near the limits of Chevron in giving deference to the ITC’s decision that “articles… that infringe” emcompasses the well-established (and statutorily defined) law of indirect infringement.

Inducement Liability Isn’t Precluded by Limelight

Nor does the Supreme Court’s Limelight v. Akamai decision present any problem. Limelight is often quoted for the proposition that there can be no inducement liability without direct infringement. And it does stand for that, as do many other cases; that point is not really in any doubt. But what Alden and others (including the dissenters in Suprema) have cited it for is the proposition that inducement liability cannot attach unless all of the elements of inducement have already been practiced at the time of importation. Limelight does not support that contention, however.

Inducement liability contemplates direct infringement, but the direct infringement need not have been practiced by the same entity liable for inducement, nor at the same time as inducement (see, e.g., Standard Oil. v. Nippon). Instead, the direct infringement may come at a later time — and there is no dispute in Suprema regarding whether there was direct infringement (there was, as Suprema notes: “the Commission found that record evidence demonstrated that Mentalix had already directly infringed claim 19 within the United States prior to the initiation of the investigation.”).

Limelight, on the other hand, is about what constitutes the direct infringement element in an inducement case. The sole issue in Limelight was whether this “direct infringement element” required that all of the steps of a method patent be carried out by a single entity or entities acting in concert. In Limelight’s network there was a division of labor, so to speak, between the company and its customers, such that each carried out some of the steps of the method patent at issue. In effect, plaintiffs argued that Limelight should be liable for inducement because it practised some of the steps of the patented method, with the requisite intent that others would carry out the rest of the steps necessary for direct infringement. But neither Limelight nor its customers separately carried out all of the steps necessary for direct infringement.

The Court held (actually, it simply reiterated established law) that the method patent could never be violated unless a single party (or parties acting in concert) carried out all of the steps of the method necessary for direct infringement. Thus it also held that Limelight could not be liable for inducement because, on the facts of that case, none of its customers could ever be liable for the necessary, underlying direct infringement. Again — what was really at issue in Limelight were the requirements to establish the direct infringement necessary to prove inducement.

On remand, the Federal Circuit reinforced the point that Limelight was really about direct infringement and, by extension, who must be involved in the direct infringement element of an inducement claim. According to the court:

We conclude that the facts Akamai presented at trial constitute substantial evidence from which a jury could find that Limelight directed or controlled its customers’ performance of each remaining method step. As such, substantial evidence supports the jury’s verdict that all steps of the claimed methods were performed by or attributable to Limelight. Therefore, Limelight is liable for direct infringement.

The holding of Limelight is simply inapposite to the facts of Suprema. The crux of Suprema is whether the appropriate mens rea existed to support a claim of inducement — not whether the requisite direct infringement occurred or not.

The Structure of § 337 Supports The ITC’s Ability to Block Inducement

Further, as the majority in Suprema notes, the very idea of inducement liability necessarily contemplates that there will be a temporal separation between the event that gives rise to indirect liability and the future direct infringement (required to prove inducement). As the Suprema court briefly noted “Section 337(a)(1)(B)’s ‘sale . . . after importation’ language confirms that the Commission is permitted to focus on post-importation activity to identify the completion of infringement.”

In particular, each of the enforcement powers in § 337(a) contains a clause that, in addition to a prohibition against, e.g., infringing articles at the time of importation, also prohibits “the sale within the United States after importation by the owner, importer, or consignee, of articles[.]” Thus, Congress explicitly contemplated that the ITC would have the power to act upon articles at various points in time, not limiting it to a power effective only at the moment of importation.

Although the particular power to reach into the domestic market has to do with preventing the importer or its agent from making sales, this doesn’t undermine the larger point here: the ITC’s power to prevent infringing articles extends over a range of time. Given that “articles that … infringe” is at the very least ambiguous, and, as per the Federal Circuit (and our own position), this ambiguity allows for indirect infringement, it isn’t a stretch to infer that that Congress intended the ITC to have authority under § 337 to ban the import of articles that induce infringement that occurs only after the time of importation..

To interpret § 337 otherwise would be to render it absurd and to create a giant loophole that would enable infringers to easily circumvent the ITC’s enforcement powers.

A Dissent from the Dissent

The dissent also takes a curious approach to § 271 by mixing inducement and contributory infringement, and generally making a confusing mess of the two. For instance, Judge Dyk says

At the time of importation, the scanners neither directly infringe nor induce infringement… Instead, these staple articles may or may not ultimately be used to infringe… depending upon whether and how they are combined with domestically developed software after importation into the United States (emphasis added).

Whether or not the goods were “staples articles” (and thus potentially capable of substantial noninfringing uses) has nothing to do with whether or not there was inducement. Section 271 makes a very clear delineation between inducement in § 271(b) and contributory infringement in § 271(c). While a staple article of commerce capable of substantial noninfringing uses will not serve as the basis for a contributory infringement claim, it is irrelevant whether or not goods are such “staples” for purposes of establishing inducement.

The boundaries of inducement liability, by contrast, are focused on the intent of the actors: If there is an intent to induce, whether or not there is a substantial noninfringing use, there can be a violation of § 271. Contributory infringement and inducement receive treatment in separate paragraphs of § 271 and are separate doctrines comprising separate elements. This separation is so evident on the face of the law as well as in its history that the Supreme Court read the doctrine into copyright in Grokster — where, despite a potentially large number of non-infringing uses, the intent to induce infringement was sufficient to find liability.

Parting Thoughts on Chevron

We have some final thoughts on the Chevron question, because this is rightly a sore point in administrative law. In this case we think that the analysis should have ended at step one. Although the Federal Circuit began with an assumption of ambiguity, it was being generous to the appellants. Did Congress speak with clear intent? We think so. Section 271 very clearly includes direct infringement as well as indirect infringement within its definition of what constitutes infringement of a patent. When § 337 references “articles … that infringe” it seems fairly obvious that Congress intended the ITC to be able to enforce the prohibitions in § 271 in the context of imported goods.

But even if we advance to step two of the Chevron analysis, the ITC’s construction of § 337 is plainly permissible — and far from expansive. By asserting its authority here the ITC is simply policing the importation of infringing goods (which it clearly has the power to do), and doing so in the case of goods that indirectly infringe (a concept that has been part of US law for a very long time). If “infringe” as used in the Tariff Act is ambiguous, the ITC’s interpretation of it to include both indirect as well as direct infringement seems self-evidently reasonable.

Under the dissent’s (and Alden’s) interpretation of § 337, all that would be required to evade the ITC would be to import only the basic components of an article such that at the moment of importation there was no infringement. Once reassembled within the United States, the ITC’s power to prevent the sale of infringing goods would be nullified. Section 337 would thus be read to simply write out the entire “indirect infringement” subdivision of § 271 — an inference that seems like a much bigger stretch than that “infringement” under § 337 means all infringement under § 271. Congress was more than capable of referring only to “direct infringement” in § 337 if that’s what it intended.

Much as we would like to see Chevron limited, not every agency case is the place to fight this battle. If we are to have agencies, and we are to have a Chevron doctrine, there will be instances of valid deference to agency interpretations — regardless of how broadly or narrowly Chevron is interpreted. The ITC wasn’t making a power grab in Suprema, nor was its reading of the statute unexpected, inconsistent with its past practice, or expansive.

In short, Suprema doesn’t break any new statutory interpretation ground, nor present a novel question of “deep economic or political significance” akin to the question at issue in King v. Burwell. Like it or not, there will be no roots of an anti-Chevron-deference revolution growing out of Suprema.

In Administrative Law, Copyright, Google, Intellectual Property, International, International Trade, Patent, Platforms, Regulation, Supreme Court , , , , , , , , , , ,
permalink

The Federal Circuit Misapplies Chevron Deference (and Risks a Future “Supreme Scolding”) in Suprema Inc. v. ITC

Alden Abbott —  14 August 2015

On August 10, in Suprema, Inc. v. ITC, the en banc Federal Circuit granted Chevron deference to a U.S. International Trade Commission (“ITC”) statutory interpretation in holding that goods that do not directly infringe a U.S. patent at the time they are imported nevertheless may be excluded from entry by the ITC if they are used, after importation, to directly infringe by the importer at the inducement of the goods’ seller.  Although this decision is good news for believers in strong U.S. patent enforcement against infringing imports, it is problematic as a matter of jurisprudence.  It may face stormy waters if it eventually is subject to U.S. Supreme Court review.  The gist of the case is as follows.

In May 2010, Cross Match Technologies, Inc. (“Cross Match”) filed a complaint with the ITC, alleging infringement of four patents it owned that involved certain fingerprint scanning devices.  The ITC found the scanners were manufactured abroad by a Korean company, Suprema, Inc. (“Suprema”).  An American company, Mentalix, Inc., bought the scanners and imported them into the United States.  Mentalix subsequently combined the scanners with Mentalix software, and used and sold the scanners in the U.S.  The ITC determined that Mentalix directly infringed a Cross Match patent claim by integrating its software with the Suprema scanners.  The ITC also found that Suprema was liable for inducing patent infringement by Mentalix, in that it “willfully blinded” itself to and “actively encouraged” Mentalix’s infringing U.S. activities.  (Furthermore, Suprema “aided and abetted” Mentalix’s infringement by assisting Mentalix in getting Mentalix software to work with the scanners.)  Consequently, the ITC imposed an exclusion order covering the importation of scanners used in the infringement, applying Section 337 of the Tariff Act of 1930 (“Section 337”), which declares unlawful “importing articles that . . . infringe a valid and enforceable United States patent.”  On appeal, a three-judge Federal Circuit panel disagreed and found no Section 337 violation, reasoning that there are no “articles that infringe” at the time of importation when direct infringement does not occur until after importation.  The Federal Circuit granted a rehearing en banc and a six-judge majority vacated the panel decision, with four judges dissenting.

The en banc majority opinion, authored by Judge Jimmie V. Reyna, applied Chevron deference to the ITC’s determination.  (The administrative law principle known as “Chevron deference,” enunciated in 1984 by the U.S. Supreme Court in Chevron U.S.A. Inc. v. NRDC, gives judicial deference to an agency’s construction of federal statutory language if (1) the statutory language is ambiguous and (2) the agency’s interpretation is based on a “permissible” construction of the language.  An agency’s interpretation need not be the “best” or “most likely” statutory construction, it need only be “not unreasonable.”)  The opinion found first that because Section 337 refers to “articles that infringe,” not just to infringement (the subject of the Patent Act), textual uncertainty is introduced.  In other words, applying Chevron Step One, “Congress has not directly answered whether goods qualify as ‘articles that infringe’ when the [ITC] has found that an importer used such goods, after importation, to directly infringe at the inducement of the goods’ seller.”  Applying Chevron Step Two, Judge Reyna deemed reasonable the ITC’s determination that induced infringement was covered by Section 337:  “Induced infringement is one kind of infringement, and when it is accomplished by supplying an article, the article supplied can be an ‘article that infringes’ if the other requirements of inducement are met.”  Furthermore, “[t]he legislative history consistently evidence[d] Congressional intent to vest the ITC with broad enforcement authority to remedy unfair trade acts.”  Accordingly, Judge Reyna held that deference to the ITC’s interpretation of Section 337 was warranted.

A four-judge dissent, authored by Judge Kathleen M. O’Malley, found no ambiguity in the term “articles that infringe,” and stressed that “there is no actual harm to a patentee until an infringing use, and that harm only occurs after importation for method claims such as the ones at issue in this appeal. This is especially true for staple goods like Suprema’s scanners, where a broad assertion of the Commission’s power could prevent noninfringing goods from entering the country on the basis of what a customer may do with that item once it enters U.S. territory. Such considerations are the purview of the district courts, and fall outside the limited statutory jurisdiction of the [ITC].”  Notably, Judge O’Malley also relied heavily on the Supreme Court’s 2014 decision in Limelight Networks v. Akamai Technologies, when the Court held that inducement liability may arise if and only if there is direct patent infringement.  As Judge O’Malley explained, “[b]y permitting indirect infringement liability at the point of importation when there has been no direct infringement, the [Federal Circuit en banc] majority crafts patent policy where it believes there is a loophole ripe for abuse.”  But “[a]s the Supreme Court recently reminded us” in Limelight, “ ‘[t]he courts should not create liability for inducement of non-infringing conduct where Congress has elected not to extend that concept.’ ”

The dissent has the better case.  The fact is, the scanners did not infringe when they were imported, only when they were bundled subsequently with another company’s software in connection with their being marketed in the United States.  Finding ambiguity in the term “articles that infringe” involves an exercise in statutory construction that appears strained to the point of unreasonableness.  It would likely be viewed unfavorably by the Supreme Court, which recently has shown reluctance about routinely invoking Chevron deference (see, for example, the Court’s very recent summary rejection of such deference in Michigan v. EPA).  Furthermore, the en banc majority’s willingness to find inducement liability at a time when direct patent infringement has not yet occurred (the point of importation) is very hard to square with the teachings of Akamai.  Finally, Federal Circuit decisions have fared poorly before the Supreme Court in recent years, and Judge O’Malley’s thoughtful application of Akamai’s teachings makes the en banc majority’s opinion a particularly ripe target for Supreme Court reversal, should certiorari be granted. 

As Judge O’Malley pointed out, if U.S. patentees are being seriously harmed by induced infringement after the point of importation, a simple statutory tweak to Section 337 should deal with the problem.  Supporters of strong patent protection would be well advised to have such an amendment “in their back pocket” and ready to go should the Supreme Court elect to review the Suprema decision.

In Administrative Law, Intellectual Property, International, International Trade, Patent, Regulation , , ,
permalink

Let’s Inject Antitrust Principles into Antidumping Law

Alden Abbott —  17 July 2015

In a Heritage Foundation paper released today, I argue that U.S. antidumping law should be reformed to incorporate principles drawn from the antitrust analysis of predatory pricing.  A brief summary of my paper follows.  Such a change would transform antidumping law from a special interest cronyist tool that harms U.S. consumers into a sensible procompetitive provision.

Imports and Dumping

Imported goods and services provide great benefits to the American economy and to American consumers.  Imports contribute to U.S. job creation on a large scale, provide key components incorporated by U.S. manufacturers into their products, and substantially raise the purchasing power of American consumers.

Despite the benefits of imports, well-organized domestic industries have long sought to protect themselves from import competition by convincing governments to impose import restrictions that raise the costs of imported goods and thus reduce the demand for imports.  One of the best known types of import restrictions (one that is allowed under international trade agreements and employed by many other countries as well) is an “antidumping duty,” a special tariff assessed on imported goods that allegedly are set at “unfairly lower” rates than the prices for the same products sold in their domestic market.

Product-specific U.S. antidumping investigations are undertaken by the U.S. Department of Commerce (DOC) and the U.S. International Trade Commission (USITC, an independent federal agency), in response to a petition from a U.S. producer, a group of U.S. producers, or a U.S. labor union.  The DOC determines if dumping has occurred and calculates the “dumping margin” (the difference between a “fair” and an “unfair” price) for the setting of antidumping tariffs.  The USITC decides whether a domestic industry has been “materially injured” by dumping.  If the USITC finds material injury, the DOC publishes an antidumping order, which requires importers of the investigated merchandise to post a cash deposit equal to the estimated dumping duty margins.

Economists define dumping as international “price discrimination”— the charging of lower prices (net of selling expenses and transportation) in a foreign market than in a domestic market for the same product.  Despite its bad-sounding label, price discrimination, whether foreign or domestic, is typically a perfectly legitimate profitable business practice that benefits many consumers.  Price discrimination allows a producer to sell to additional numbers of price-sensitive consumers in the low-priced market, to their benefit:  Those consumers would have bought nothing at all if faced with a uniformly applied higher price.

Dumping harms domestic consumers and the overall economy only when the foreign seller successfully drives domestic producers out of business by charging an overly low “predatory” (below its cost) import price, monopolizes the domestic market, and then raises import prices to monopoly levels, thereby recouping any earlier losses.  In such a situation, domestic consumers pay higher prices over time due to the domestic monopoly, and domestic producers that exited the market due to predation suffer welfare losses as well.

The Problem with Current U.S. Antidumping Law

Although antidumping law originally was aimed at counteracting such predation, antidumping provisions long ago were reformulated to raise the likelihood that dumping would be found in matters under investigation.  In particular, 1974 legislation eliminated consideration of sales made below full production cost in the home market and promoted the use of “constructed value” calculations for home-market sales that included approximations for the cost of production, selling, general and administrative expenses, and an amount for profit.  This methodology, compared to the traditional approach of comparing actual net foreign product prices with net U.S. prices, tended to favor domestic producers by yielding higher margins of dumping.

The favoring of domestic industries continued with the Trade Tariff Act of 1984, which compelled the USITC to use a “cumulation” analysis that could subject multiple countries to anti-dumping penalties if one county’s product was found to cause material injury to the establishment of a domestic industry.  More specifically, under cumulation, if multiple countries are being investigated for dumping the same particular product and if exports from any one of those countries, or all in combination, are found to cause material injury, then all exports are made subject to an antidumping order.  Thus, imports from individual countries that individually could not be shown to cause material injury face a price increase — an anti–American consumer outcome that lacks any legitimate rationale.

These and other developments have further encouraged American industries to invoke antidumping as a protectionist mechanism.  Thus, it is not surprising that in recent decades, there has been a significant increase in the number of U.S. antidumping cases filed and the number of affirmative injury findings.  Also noteworthy is the proliferation of foreign antidumping laws since 1980, which harms American exporters. Overall, the economic impact of antidumping law on the American economy has grown substantially.  In short, antidumping is a cronyist special interest law that harms American consumers.

Moreover, even taking into account domestic industrial interests, prohibiting dumping likely would not have a positive effect on domestic industry as a whole.  Antidumping restrictions on imported raw materials and industrial products used by U.S. firms make it difficult for these firms to compete internationally.  In fact, the USITC is statutorily barred from considering their impact on consuming industries.  These consuming industries are often a larger part of the U.S. economy than the industries benefitting from antidumping regulation, and producers of upstream products have become reliant on restricting customer access to foreign goods rather than better responding to their customers’ needs.

Furthermore, antidumping harms the U.S. economy by reducing American firms’ incentive to produce more efficiently.  Non-predatory dumping spurs domestic firms to produce more efficiently (at lower costs) so that they can reduce prices and compete with imports in order to remain in the market.  Finally, the existence of antidumping law may encourage implicit collusion among domestic firms and foreign firms to soften price competition.  The truth is that when domestic industries complain that non-predatory dumping is “unfair,” they are really objecting to competition on the merits — competition that raises overall long-term American economic welfare.

A New Antitrust-Based Predatory Pricing Test for Dumping

In sum, aggressive price competition by foreign producers benefits American consumers, enhances economic efficiency, and promotes competitive vigor — net benefits to the American economy.  Only below-cost “predatory dumping” by a foreign monopolist that allows it to drive out American producers and then charge monopoly prices to American consumers should be a source of U.S. policy concern and legal prohibition.

A test that would prohibit only harmful predatory dumping can be drawn directly from a standard developed by U.S. courts and scholars for determining illegal price predation under American antitrust law.  Applying that test in antidumping cases, antidumping tariffs would be imposed only when two conditions were satisfied.

First, the government would have to determine that the imports under scrutiny were priced at a below-cost level that caused the foreign producer to incur losses on the production and sale of those imports.  This would be a price below “average avoidable cost,” which would include all the costs that a firm could have avoided incurring by not producing the allegedly dumped products.

Second, if it met the first test, the government would have to show that the firm allegedly doing the dumping would be likely to “recoup” — that is, charge high monopoly prices for future imports that more than make up for its current losses on below cost imports.

This proposed new antidumping methodology would be administrable.  Indeed, because it focuses narrowly and solely on certain readily ascertainable costs and data on domestic industry viability, it should be easier (and thus less costly) to apply than the broad and uncertain methodologies under current law.

Of perhaps greater significance, it could serve as a sign that the U.S. government favors competition on the merits and rejects special-interest cronyism — a message that could prove valuable in international negotiations aimed at having other nations’ antidumping regimes adopt a similar approach.  To the extent that other jurisdictions adopted reforms that emulated the new American approach, U.S. exporters would benefit from reduced barriers to trade, a further boon to the U.S. economy.

Conclusion

U.S. antidumping law should be reformed so that it is subject to a predatory pricing test drawn from American antitrust law.  Application of such a standard would strengthen the American economy and benefit U.S. consumers while precluding any truly predatory dumping designed to destroy domestic industries and monopolize American industrial sectors.

In Antitrust & Competition, International, International Trade, Price Discrimination , , , ,
permalink

Undermining Investment in Standard Setting by Weakening Patents: How a Recent Justice Department Business Review Letter Gets Things Wrong

Alden Abbott —  24 March 2015

As I explained in a recent Heritage Foundation Legal Memorandum, the Institute of Electrical and Electronics Engineers’ (IEEE) New Patent Policy (NPP) threatens to devalue patents that cover standards; discourage involvement by innovative companies in IEEE standard setting; and undermine support for strong patents, which are critical to economic growth and innovation.  The Legal Memorandum focused on how the NPP undermines patentees’ rights and reduces returns to patents that “read on” standards (“standard essential patents” or “SEPs”).  It did not, however, address the merits of the Justice Department Antitrust Division’s (DOJ) February 2 Business Review Letter (BRL), which found no antitrust problems with the NPP.

Unfortunately, the BRL does little more than opine on patent policy questions, such as the risk of patent “hold-up” that the NPP allegedly is designed to counteract.  The BRL is virtually bereft of antitrust analysis.  It states in conclusory fashion that the NPP is on the whole procompetitive, without coming to grips with the serious risks of monopsony and collusion, and reduced investment in standards-related innovation, inherent in the behavior that it analyzes.  (FTC Commissioner Wright and prominent economic consultant Greg Sidak expressed similar concerns about the BRL in a March 12 program on standard setting and patents hosted by the Heritage Foundation.)

Let’s examine the BRL in a bit more detail, drawing from a recent scholarly commentary by Stuart Chemtob.  The BRL eschews analyzing the risk that by sharply constraining expected returns to SEPs, the NPP’s requirements may disincentivize technology contributions to standards, harming innovation.  The BRL focuses on how the NPP may reduce patentee “hold-up” by effectively banning injunctions and highlighting three factors that limit royalties – basing royalties on the value of the smallest saleable unit, the value contributed to that unit in light of all the SEPs practiced the unit, and existing licenses covering the unit that were not obtained under threat of injunction.  The BRL essentially ignores, however, the very real problem of licensee “hold-out” by technology implementers who may gain artificial bargaining leverage over patentees.  Thus there is no weighing of the NPP’s anticompetitive risks against its purported procompetitive benefits.  This is particularly unfortunate, given the absence of hard evidence of hold-up.  (Very recently, the Federal Circuit in Ericsson v. D-Link denied jury instructions citing the possibility of hold-up, given D-Link’s failure to provide any evidence of hold-up.)   Also, by forbidding injunctive actions prior to first level appellate review, the NPP effectively precludes SEP holders from seeking exclusion orders against imports that infringe their patents, under Section 337 of the Tariff Act.  This eliminates a core statutory protection that helps shield American patentees from foreign anticompetitive harm, further debasing SEPs.  Furthermore, the BRL fails to assess the possible competitive harm firms may face if they fail to accede to the IEEE’s NPP.

Finally, and most disturbingly, the BRL totally ignores the overall thrust of the NPP – which is to encourage potential licensees to insist on anticompetitive terms that reduce returns to SEP holders below the competitive level.  Such terms, if jointly agreed to by potential licensees, could well be deemed a monopsony buyers’ cartel (with the potential licensees buying license rights), subject to summary antitrust condemnation in line with such precedents as Mandeville Island Farms and Todd v. Exxon.

In sum, the BRL is an embarrassingly one-sided document that would merit a failing grade as an antitrust exam essay.  DOJ would be wise to withdraw the letter or, at the very least, rewrite it from scratch, explaining that the NPP raises serious antitrust questions that merit close examination.  If it fails to do so, one can only conclude that DOJ has decided that it is suitable to use business review letters as vehicles for unsupported statements of patent policy preferences, rather than as serious, meticulously crafted memoranda of guidance on difficult antitrust questions.

In Antitrust & Competition, Antitrust Division, Intellectual Property, International, International Trade, Justice Department, Law & Economics, Patent, Standard Setting ,
permalink