The United States Court of Appeals for the Federal Circuit
recently granted a petition for a panel rehearing by the U.S.
International Trade Commission (ITC) and withdrew a component of a
published decision that would have prohibited the ITC's
practice of circumscribing the scope of Federal Circuit reviews of
ITC adjudications in Section 337 cases are a two-step process.
An Administrative Law Judge (ALJ) holds a hearing and issues an
Initial Determination (ID). If the Commission as a whole does not
vote to review the ID, either by granting a party's petition or
on its own motion, then the ID becomes the Final Determination
(FD)2. Otherwise, the Commission's decision is the
FD. The FD is ultimately appealable to the Federal
In some instances the Commission notices review of sections of
the ID that it then later chooses not to rule upon. It has been the
long-standing position of the Commission that under such
circumstances the only issues ripe for appeal to the Federal
Circuit are the ones upon which it actually ruled. The Federal
Circuit arguably endorsed this position.4
In the strongly worded initial decision in this case by Circuit
Judge Pauline Newman, a 3-0 panel of the Federal Circuit, including
Chief Judge Randall R. Rader and Circuit Judge Richard Linn,
rejected the ITC's practice of noticing issues from Initial
Determinations but not reviewing them, thereby depriving the
aggrieved party of the statutory right of appeal: "This right
[of appeal] cannot be negated by taking no position on the
The ITC filed a petition for panel rehearing and rehearing
en banc. Upon invitation by the panel, General Electric
filed a response to the petition.
By a 2-1 decision authored by Chief Judge Rader and joined in by
Judge Linn, the panel granted the ITC's petition for panel
rehearing for the limited purpose of withdrawing the portion of the
initial decision prohibiting the ITC from limiting the scope of
judicial review. The Court, however, did not foreclose revisiting
the issue at a later date: "The panel offers no decisions on
the questions raised in Part III, which may arise in future
Because the Federal Circuit has left the issue unresolved,
appellants in ITC cases would be well advised to consider
continuing to preserve the issue for appeal should it arise in
If you have any questions about this Alert, please contact
Rodney R. Sweetland III, Michael G. McManus, any member of the ITC
Section 337 Litigation Practice Group or any attorney in the firm
with whom you are in regular contact.
1 General Electric Co. v. Int'l Trade
Comm'n, 2012 LEXIS 13829 (July 6,
2 19 C.F.R. § 210.42(h).
3 28 U.S.C. § 1295(a)(6).
4 See Beloit Corp. v. Valmet OY, 742 F.2d 1421,
1423 (Fed. Cir. 1984).
5 General Electric Co. v. Int'l Trade
Comm'n, 670 F.3d 1206, 1220 (Fed. Cir. 2012).
6 General Electric Co. v. Int'l Trade
Comm'n, 2012 LEXIS 13829 at *1.
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A discussion on the jurisdictional limitations of forum-selection clauses, the inconsistencies with their enforceability, and the potential for the establishment of a standardized procedure to enable companies to evaluate forum-selection clauses with more certainty going forward.
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In Upjohn Co. v. United States, 449 U.S. 383 (1981), the court interpreted federal common law as extending privilege protection to communications between a company's lawyer and any level of employee, if that employee has facts the lawyer needs when advising the corporate client.