Trade Courts Update for Week of November 18, 2015

United States Court of International Trade


Defendant’s Motion to Dismiss and Motion for Summary Judgment Granted

In American Power Pull Corporation v. United States, Court No. 14-88, Slip Op. 15-128, Judge Barnett dismissed plaintiff’s complaint and granted defendant’s motion to dismiss and motion for summary judgment. Plaintiff filed a protest on entries of industrial hand trucks subject to an antidumping duty order on hand trucks and certain parts thereof.  In filing its complaint upon the denial of its protest, plaintiff claimed that there was no basis to suspend liquidation and that the goods were deemed liquidated at the cash deposit rate.  However, defendant argued that plaintiff mistakenly applied 19 USC § 1504(b) which gave Commerce the power to suspend liquidation pending an antidumping duty investigation.  The court found that the entries were properly suspended from the time of entry until the completion of the judicial review.  Moreover, because Customs liquidated plaintiff’s entries at the new dumping rate on August 10, 2012 well within the six month period beginning on July11, 2012, the entries were timely and properly liquidated at a duty rate of 145.90 percent, in accordance with the amended final results.


Defendant’s Motion to Dismiss Denied

In United States v. Great American Insurance Company of New York, Court No. 15-47, Slip Op. 15-29 (November 16, 2015),  the United States of America (“United States” or “Plaintiff”) brought this section 1582 action against Great American Insurance Company of New York (“GAIC” or “Defendant”) to recover $50,000 in unpaid antidumping duties and interest, the limit on a continuous entry bond that GAIC issued, plus pre- and post- judgment interest, including but not limited to statutory interest pursuant to 19 U.S.C. § 580, as well as equitable interest.  While defendant argued 19 U.S.C. § 1504 prevents Customs from reliquidating an entry with a new antidumping rate, after it has been deemed liquidated, the court found that 19 U.S.C. § 1501 is unambiguous in allowing such reliquidations to occur.  Finally, the court found that Customs timely reliquidated the entry within 90 days of issuing the bulletin notice, wherethe entry was deemed liquidated on February 20, 2009; Customs provided bulletin notice of this liquidation on December 18, 2009; and Customs reliquidated the entry on January 8, 2010.  Thus, the court found that Plaintiff has stated a claim upon which relief can be granted. Accordingly, the court denied Defendant’s motion to dismiss. 


United States Court of Appeals for the Federal Circuit


Federal Circuit Affirmed ITC Decision Concerning Violation of Consent Order

In DeLorme Publishing Company, Inc. and DeLorme InReach LLC (collectively, “DeLorme”) v. International Trade Commission , Court No. 2014-1572 (November 12, 2015), DeLorme appealed from a decision of the International Trade Commission (“Commission”) (1) finding that DeLorme violated a consent order by selling InReach 1.5 and SE devices containing imported components, and (2) imposing a civil penalty of $6,242,500. Certain Two-Way Global Satellite Communication Devices, System and Components Thereof, Inv. No. 337-TA-854 (Enforcement), Comm’n Op. (June 17, 2014) (J.A. 40–90) (“Comm’n Op.”).  Because the Federal Circuit found that DeLorme did violate the consent order by selling and marketing InReach 1.4 and SE devices, it affirmed the Commission’s findings and the Commission’s imposition of the civil penalty.

Back in September of 2012, the Commission initiated an investigation to determine if DeLorme violated section 337 of the Tariff Act of 1930, as amended by importing, selling for importation, or selling after importation “certain two-way global satellite communication devices, system and components thereof” which allegedly infringed claims 1, 2, 5, 10-12, and 34 of BriarTek IP, Inc.’s U.S, Patent No. 7,991,380 (‘380 Patent’).   This ‘380 patent was used for emergency monitoring systems comprising user unit and a monitoring system that communicated through a satellite network.  One of the accused products was DeLorme’s InReach 1.0 and 1.5 satellite communication devices.  The investigation was terminated in April of 2013 when DeLorme singed a consent order agreeing that it “shall not import into the United States, sell for importation into the United States, or sell or offer for sale within the United States after importation any two-way global satellite communication devices, system, components thereof that infringe claims 1, 2, 5, 10-12 and 34 of the ‘380 Patent after April 1, 2013 until the expiration, invalidation, and/or unenforceability of the ‘380 Patent.”  On May 24, 2013, the Commission instituted enforcement proceedings and found that DeLorme violated the Consent Order by selling InReach 1.5 and SE devices contained imported components. 

The Federal Circuit reviewed the Commission’s enforcement proceeding and affirmed its findings where DeLorme was specifically precluded from selling infringing devices even though some of those devices contained noninfringing components.  As for the penalty, DeLorme argued that because the patent became invalid, the consent order was no longer enforceable against DeLorme.  However, the Commission found that any invalidity applies prospectively, and because the consent order was unambiguous it still bound DeLorme.

On dissent, Circuit Judge Taranto agreed that while the Commission committed no reversible error, the penalty order should not have been affirmed where the Commission did not have an opportunity to consider the effect of the invalidation of the ‘380 Patent.