DTV Patent War Watch (7)

On October 6, 2009, the United States Court of International Trade ("CIT") issued an opinion dismissing Funai's complaint of the US Customs' earlier rulings that the limited exclusion order issued by the United States International Trade Commission ("ITC") in Inv. No. 337-TA-617 does not cover the redesigned DTV products of Vizio and other companies. Funai Elec. Co. v. United States, No. 09-00374, slip op. at 14 (Ct. Int'l Trade Oct. 6, 2009).

Notably, the CIT held that it does not have subject-matter jurisdiction under 28 U.S.C. §1581(h) & (i) for "a party plaintiff in Funai’s current circumstance." Slip op. at 11-13.

28 U.S.C. §1581(h) is reproduced below:

(h) The Court of International Trade shall have exclusive jurisdiction of any civil action commenced to review, prior to the importation of the goods involved, a ruling issued by the Secretary of the Treasury, or a refusal to issue or change such a ruling, relating to classification, valuation, rate of duty, marking, restricted merchandise, entry requirements, drawbacks, vessel repairs, or similar matters, but only if the party commencing the civil action demonstrates to the court that he would be irreparably harmed unless given an opportunity to obtain judicial review prior to such importation.

It appears that because Funai, as a patentee and ITC complainant, cannot invoke subject matter jurisdiction at the CIT, because it is not the importer who requested the US Customs' ruling, and thus cannot demonstrate that it "would be irreparably harmed unless given an opportunity to obtain judicial review prior to such importation." 28 U.S.C. §1581(h) (2006).

Note that Funai also brought an enforcement proceeding before the ITC, so it appears that the ITC should be the more appropriate forum for this dispute.