Case: 18-1450 Document: 148 Page: 1 Filed: 03/02/2020
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`COMCAST CORPORATION, COMCAST CABLE
`COMMUNICATIONS, LLC, COMCAST CABLE
`COMMUNICATIONS MANAGEMENT, LLC,
`COMCAST BUSINESS COMMUNICATIONS, LLC,
`COMCAST HOLDINGS CORPORATION, COMCAST
`SHARED SERVICES, LLC, ARRIS ENTERPRISES,
`INC., ARRIS GLOBAL LTD., ARRIS GROUP, INC.,
`ARRIS INTERNATIONAL PLC, ARRIS SOLUTIONS,
`INC., ARRIS TECHNOLOGY, INC., PACE
`AMERICAS, LLC, TECHNICOLOR, S.A.,
`TECHNICOLOR CONNECTED HOME USA LLC,
`TECHNICOLOR USA, INC.,
`Appellants
`
`v.
`
`INTERNATIONAL TRADE COMMISSION,
`Appellee
`
`ROVI CORPORATION, ROVI GUIDES, INC.,
`Intervenors
`______________________
`
`2018-1450, 2018-1653, 2018-1667
`______________________
`
`Appeals from the United States International Trade
`Commission in Investigation No. 337-TA-1001.
`______________________
`
`Decided: March 2, 2020
`______________________
`
`
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`COMCAST CORPORATION, COMCAST CABLE
`COMMUNICATIONS, LLC, COMCAST CABLE
`COMMUNICATIONS MANAGEMENT, LLC,
`COMCAST BUSINESS COMMUNICATIONS, LLC,
`COMCAST HOLDINGS CORPORATION, COMCAST
`SHARED SERVICES, LLC, ARRIS ENTERPRISES,
`INC., ARRIS GLOBAL LTD., ARRIS GROUP, INC.,
`ARRIS INTERNATIONAL PLC, ARRIS SOLUTIONS,
`INC., ARRIS TECHNOLOGY, INC., PACE
`AMERICAS, LLC, TECHNICOLOR, S.A.,
`TECHNICOLOR CONNECTED HOME USA LLC,
`TECHNICOLOR USA, INC.,
`Appellants
`
`v.
`
`INTERNATIONAL TRADE COMMISSION,
`Appellee
`
`ROVI CORPORATION, ROVI GUIDES, INC.,
`Intervenors
`______________________
`
`2018-1450, 2018-1653, 2018-1667
`______________________
`
`Appeals from the United States International Trade
`Commission in Investigation No. 337-TA-1001.
`______________________
`
`Decided: March 2, 2020
`______________________
`
`
`
`Case: 18-1450 Document: 148 Page: 2 Filed: 03/02/2020
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`2
`
`COMCAST CORP. v. U.S. INT’L TRADE COMM’N
`
`
`DONALD B. VERRILLI, JR., Munger, Tolles & Olson LLP,
`Washington, DC, argued for all appellants. Appellants
`Comcast Corporation, Comcast Cable Communications,
`LLC, Comcast Cable Communications Management, LLC,
`Comcast Business Communications, LLC, Comcast Hold-
`ings Corporation, Comcast Shared Services, LLC also rep-
`resented by GINGER ANDERS; DAVID LISSON, Davis Polk &
`Wardwell LLC, Menlo Park, CA; STEVEN ANZALONE, Win-
`ston & Strawn LLP, Washington, DC.
`
` SIDNEY A. ROSENZWEIG, Office of General Counsel,
`United States International Trade Commission, Washing-
`ton, DC, argued for appellee. Also represented by RONALD
`TRAUD, DOMINIC L. BIANCHI, WAYNE W. HERRINGTON.
`
` JEFFREY A. LAMKEN, MoloLamken LLP, Washington,
`DC, argued for intervenors. Also represented by MICHAEL
`GREGORY PATTILLO, JR., RAYINER HASHEM; RODERICK
`GEORGE DORMAN, McKool Smith PC, Los Angeles, CA;
`JOSHUA WRIGHT BUDWIN, JOEL LANCE THOLLANDER, Aus-
`tin, TX; DOUGLAS AARON CAWLEY, Dallas, TX; JOHN M.
`WHEALAN, Chevy Chase, MD.
`
` MITCHELL G. STOCKWELL, Kilpatrick Townsend &
`Stockton LLP, Atlanta, GA, for appellants ARRIS Enter-
`prises, Inc., ARRIS Global Ltd., ARRIS Group, Inc., ARRIS
`International plc, ARRIS Solutions, Inc., ARRIS Technol-
`ogy, Inc., Pace Americas, LLC. Also represented by JOSHUA
`HAMILTON LEE, MICHAEL TURTON; MATTHEW MEYER,
`Menlo Park, CA; JOSHUA B. POND, Washington, DC.
`
` PAUL M. BARTKOWSKI, Adduci, Mastriani & Schaum-
`berg, LLP, Washington, DC, for appellants Technicolor,
`S.A., Technicolor Connected Home USA LLC, Technicolor
`USA, Inc.
`
` JOHN THORNE, Kellogg, Hansen, Todd, Figel &
`
`
`
`Case: 18-1450 Document: 148 Page: 3 Filed: 03/02/2020
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`COMCAST CORP. v. U.S. INT’L TRADE COMM’N
`
`3
`
`Frederick, P.L.L.C., Washington, DC, for amicus curiae
`Verizon Services Corp. Also represented by GREGORY G.
`RAPAWY, ARIELA M. MIGDAL.
` ______________________
`
`Before NEWMAN, REYNA, and HUGHES, Circuit Judges.
`NEWMAN, Circuit Judge.
`Appellants Comcast Corporation, Comcast Cable Com-
`munications, LLC, Comcast Cable Communications Man-
`agement, LLC, Comcast Business Communications, LLC,
`Comcast Holdings Corporation, Comcast Shared Services,
`LLC (collectively “Comcast”); ARRIS Enterprises, Inc.,
`ARRIS Global Ltd., ARRIS Group, Inc., ARRIS Interna-
`tional plc, ARRIS Solutions, Inc., ARRIS Technology, Inc.,
`Pace Americas, LLC (collectively “ARRIS”); and Techni-
`color SA, Technicolor Connected Home USA LLC, and
`Technicolor USA, Inc. (collectively “Technicolor”) appeal
`the decision and orders of the United States International
`Trade Commission (“ITC” or “Commission”). The ITC’s rul-
`ings1 are in accordance with law and supported by substan-
`tial evidence, and are affirmed.
`BACKGROUND
`Rovi Corporation and Rovi Guides, Inc. (collectively
`“Rovi”) filed a complaint with the ITC alleging violation of
`Section 337 of the Tariff Act of 1930. Rovi asserted, inter
`alia, infringement of claims 1, 2, 14, and 17 of United
`
`
`1 Certain Digital Video Receivers and Hardware and
`Software Components Thereof, Inv. No. 337-TA-1001,
`USITC Pub. 4931, 2017 WL 11249982 (Dec. 6, 2017)
`(“Comm. Op.”); Certain Digital Video Receivers and Hard-
`ware and Software Components Thereof, Inv. No. 337-TA-
`1001, USITC Pub. 4931, 2017 WL 3485153 (May 26, 2017)
`(“Final ID”).
`
`
`
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`4
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`COMCAST CORP. v. U.S. INT’L TRADE COMM’N
`
`States Patent No. 8,006,263 (“the ’263 patent”) and claims
`1, 3, 5, 9, 10, 14, and 18 of United States Patent No.
`8,578,413 (“the ’413 patent”). Rovi stated, and the Com-
`mission found, that Comcast’s customers directly infringe
`the ’263 and ’413 patents by using Comcast’s X1 system.
`The Commission found that Comcast is in violation of Sec-
`tion 337 by importing the X1 set-top boxes that are used in
`the infringing system.
`The ’263 and ’413 patents describe and claim an inter-
`active television program guide system for remote access to
`television programs. The asserted claims require a remote
`program guide access device, such as a mobile device, that
`is connected to an interactive television program guide sys-
`tem over a remote access link, whereby users can remotely
`access the program guide system. Claim 1 of the ’263 pa-
`tent is representative:
`1. A system for selecting television programs over
`a remote access link comprising an Internet
`communications path for recording, compris-
`ing:
`a local interactive television program guide equip-
`ment on which a local interactive television
`program guide is implemented, wherein the lo-
`cal interactive television program guide equip-
`ment
`includes user television equipment
`located within a user’s home and the local in-
`teractive television program guide generates a
`display of one or more program listings for dis-
`play on a display device at the user’s home; and
`a remote program guide access device located out-
`side of the user’s home on which a remote ac-
`cess interactive television program guide is
`implemented, wherein the remote program
`guide access device is a mobile device, and
`wherein the remote access interactive televi-
`sion program guide:
`
`
`
`Case: 18-1450 Document: 148 Page: 5 Filed: 03/02/2020
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`COMCAST CORP. v. U.S. INT’L TRADE COMM’N
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`5
`
`generates a display of a plurality of program list-
`ings for display on the remote program guide
`access device, wherein the display of the plural-
`ity of program listings is generated based on a
`user profile stored at a location remote from the
`remote program guide access device;
`receives a selection of a program listing of the plu-
`rality of program listings in the display,
`wherein the selection identifies a television
`program corresponding to the selected program
`listing for recording by the local interactive tel-
`evision program guide; and
`transmits a communication identifying the televi-
`sion program corresponding to the selected pro-
`gram listing from the remote access interactive
`television program guide to the local interac-
`tive television program guide over the Internet
`communications path;
`wherein the local interactive television program
`guide receives the communication and records
`the television program corresponding to the se-
`lected program listing responsive to the com-
`munication using
`the
`local
`interactive
`television program guide equipment.
`’263 patent col. 28, ll. 27–63.
`The administrative law judge (“ALJ”) conducted an in-
`vestigation and trial, and found violation of Section 337.
`The ALJ found that the X1 set-top boxes are imported by
`ARRIS and Technicolor, and that “Comcast is sufficiently
`involved with the design, manufacture, and importation of
`the accused products, such that it is an importer for pur-
`poses of Section 337.” Final ID at *11. The full Commis-
`sion affirmed “the Final ID’s findings and conclusion that
`
`
`
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`6
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`COMCAST CORP. v. U.S. INT’L TRADE COMM’N
`
`Comcast imports the X1 STBs2 into the United States.”
`Comm. Op. at *7.
`The full Commission affirmed “the Final ID’s conclu-
`sion that the X1 systems meet all of the limitations of the
`asserted claims” and “Comcast’s customers directly in-
`fringed the ’263 and ’413 patents through their use of the
`X1 systems in the United States.” Id. at *10–11. The Com-
`mission stated that “[t]he Final ID’s unreviewed findings
`also conclude that Comcast induced that infringement,”
`and that “Comcast also instructs, directs, or advises its cus-
`tomers on how to carry out direct infringement of the as-
`serted claims of the ’263 and ’413 patents with the X1
`STBs.” Id. The Commission affirmed that Comcast vio-
`lated Section 337.
`For ARRIS and Technicolor, the full Commission af-
`firmed the finding of the Final ID that these entities do not
`directly infringe the asserted claims because they do not
`provide a “remote access device” as required by the claims.
`Id. at *13; Final ID at *162. The Final ID also found that
`they do not contributorily infringe because the set-top
`boxes have substantial non-infringing uses. Id. at *163.
`The Commission issued a limited exclusion order and
`cease and desist orders directed to the Comcast respond-
`ents. The limited exclusion order excludes importation of
`the X1 set-top boxes by Comcast, including importation by
`ARRIS and Technicolor on behalf of Comcast:
`Digital video receivers and hardware and software
`components thereof that infringe one or more of
`[the asserted claims of the ’263 patent and the ’413
`patent] that are manufactured by, or on behalf of,
`or are imported by or on behalf of [Comcast,] or any
`
`
`2 The Commission refers to the set-top boxes as
`“STBs” in the Commission Opinions and Determinations.
`
`
`
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`COMCAST CORP. v. U.S. INT’L TRADE COMM’N
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`7
`
`of their affiliated companies, parents, subsidiaries,
`agents, or other related business entities, or their
`successors or assigns, including ARRIS and Tech-
`nicolor to the extent they import such products on
`behalf of [Comcast], are excluded from entry for
`consumption into the United States . . . .
`Certain Digital Video Receivers and Hardware and Soft-
`ware Components Thereof, Inv. No. 337-TA-1001, USITC
`Pub. 4931 (August 2019) (limited exclusion order) (footnote
`omitted). The Commission also issued six cease and desist
`orders to each of the Comcast entities, ordering that each
`entity:
`[C]ease and desist from conducting any of the fol-
`lowing activities in the United States: importing,
`selling, offering for sale, leasing, offering for lease,
`renting, offering for rent, marketing, advertising,
`distributing, transferring (except for exportation),
`and soliciting U.S. agents or distributors for, cer-
`tain digital video receivers and hardware and soft-
`ware components thereof covered by [the asserted
`claims of the ’263 patent and the ’413 patent] in vi-
`olation of section 337 of the Tariff Act of 1930 . . . .
`Id. (cease and desist orders).
`Comcast, ARRIS, and Technicolor appeal, and Rovi
`participates as intervenor. On appeal Comcast does not
`dispute direct infringement by its customers, and does not
`dispute that it induces infringement by its customers. In-
`stead, Comcast argues that its conduct is not actionable un-
`der Section 337 because Comcast’s inducing conduct “takes
`place entirely domestically, well after, and unrelated to,
`the article’s importation” and also that Comcast does not
`itself import the articles. Comcast Br. 1–2. ARRIS and
`Technicolor argue that the Commission does not have au-
`thority to issue an exclusion order “that blocks the impor-
`tation of articles manufactured and imported by ARRIS
`and Technicolor despite the Commission’s determination
`
`
`
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`COMCAST CORP. v. U.S. INT’L TRADE COMM’N
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`that ARRIS and Technicolor did not violate Section 337 and
`did not infringe the asserted patents.” ARRIS Br. 14.
`DISCUSSION
`Standards of Review
`The Commission’s factual findings are reviewed for
`support by substantial evidence. Honeywell Int’l, Inc. v.
`U.S. Int’l Trade Comm’n, 341 F.3d 1332, 1338 (Fed. Cir.
`2003). Legal conclusions receive de novo review. Id.
`To remedy violation of Section 337, “the Commission
`has broad discretion in selecting the form, scope, and ex-
`tent of the remedy, and judicial review of its choice of rem-
`edy necessarily is limited.” Hyundai Elecs. Indus. Co. v.
`U.S. Int’l Trade Comm’n, 899 F.2d 1204, 1209 (Fed. Cir.
`1990). The court “may set aside the Commission’s choice of
`remedy only if it is legally erroneous, arbitrary and capri-
`cious, or constitutes an abuse of discretion.” Fuji Photo
`Film Co. v. U.S. Int’l Trade Comm’n, 386 F.3d 1095, 1106
`(Fed. Cir. 2004).
`
`I
`MOTION TO DISMISS
`The ’263 patent expired on September 18, 2019 and the
`’413 patent expired on July 16, 2019. The Appellants have
`moved for dismissal of this appeal on the ground that the
`appeal has become moot, for after a patent expires “the
`ITC’s limited exclusionary order and cease and desist or-
`ders as to that patent have no further prospective effect.”
`Hyosung TNS Inc. v. U.S. Int’l Trade Comm’n, 926 F.3d
`1353, 1357 (Fed. Cir. 2019). The Appellants also request
`vacatur of the Commission’s determination of violation of
`Section 337.
`The Commission and Rovi oppose, stating that there
`are continuing issues and actions to which these rulings
`are relevant, whereby appellate finality is warranted be-
`cause
`there are ongoing
`“collateral consequences,”
`
`
`
`Case: 18-1450 Document: 148 Page: 9 Filed: 03/02/2020
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`COMCAST CORP. v. U.S. INT’L TRADE COMM’N
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`9
`
`referring to two ITC investigations on unexpired Rovi pa-
`tents that involve imported X1 set-top boxes. The Commis-
`sion identifies Certain Digital Video Receivers and Related
`Hardware and Software Components, Inv. No. 337-TA-
`1103 (“1103 Investigation”) and Certain Digital Video Re-
`ceivers, Broadband Gateways, and Related Hardware and
`Software Components, Inv. No. 337-TA-1158 (“1158 Inves-
`tigation”).
`It appears to be undisputed that these investigations
`are likely to be affected by the decisions here on appeal.
`For example, in the 1103 Investigation the ALJ stated that
`“[t]he Federal Circuit’s ruling” in the present appeal “will
`affect the finding” in that investigation. 1103 Investiga-
`tion, 2019 WL 2953268, at *2 (June 3, 2019). And in the
`1158 Investigation there is a similar issue of importation,
`with the date for completion of the investigation set for Oc-
`tober 29, 2020, pursuant to Commission Rule 210.51(a)(1).
`1158 Investigation, 2019 WL 2880853, at *2 (July 3, 2019).
`It is recognized that “a case may remain alive based on
`collateral consequences, which may be found in the pro-
`spect that a judgment will affect future litigation or admin-
`istrative action.” Hyosung, 926 F.3d at 1358 (citing 13C
`Charles Alan Wright, Arthur R. Miller & Edward H.
`Cooper, Federal Practice and Procedure § 3533.3.1 (3d ed.
`2008) (internal quotation marks omitted)). Although in
`Hyosung the court held that co-pending district court liti-
`gation did not avert mootness of an ITC decision after pa-
`tent expiration, the pending actions here involve unexpired
`patents related to the same imported X1 set-top boxes. The
`Commission states that the issues on appeal concern the
`scope of Section 337 as a matter of statutory interpretation.
`We conclude that there are sufficient collateral conse-
`quences to negate mootness. The motion for dismissal is
`denied.
`
`
`
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`10
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`COMCAST CORP. v. U.S. INT’L TRADE COMM’N
`
`II
`THE SECTION 337 VIOLATION
`The Final ID and the full Commission found violation
`of Section 337. 19 U.S.C. § 1337(a) includes:
`(1) Subject to paragraph (2), the following are un-
`lawful . . . .
`(B) The importation into the United States,
`the sale for importation, or the sale within
`the United States after importation by the
`owner, importer, or consignee, of articles
`that—
`(i) infringe a valid and enforceable United
`States patent . . . .
`It is not disputed that Comcast’s customers directly in-
`fringe the ’263 and ’413 patents. It is also undisputed that
`Comcast induces its customers to directly infringe these
`patents. Comcast’s argument is that Section 337 is not vi-
`olated for two reasons: first, that the imported X1 set-top
`boxes are not “articles that infringe” because the boxes do
`not infringe the patents at the time of importation; and sec-
`ond, that Comcast is not the importer of the X1 set-top
`boxes, but takes title to the imported boxes only after the
`boxes are imported by ARRIS and Technicolor.
`A
`
`“Articles that Infringe”
`Comcast argues that the Commission’s authority under
`Section 337 is limited to excluding articles that infringe at
`the time of importation. Comcast states that this is the
`holding of Suprema, Inc. v. U.S. Int’l Trade Comm’n, 796
`F.3d 1338 (Fed. Cir. 2015) (en banc). The Commission and
`Rovi respond that Suprema establishes that imported arti-
`cles infringe in terms of Section 337, when infringement
`occurs after importation.
`
`
`
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`COMCAST CORP. v. U.S. INT’L TRADE COMM’N
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`11
`
`In Suprema this court considered Section 337 as ap-
`plied to infringement after importation, stating:
`Section 337 contemplates that infringement may
`occur after importation. The statute defines as un-
`lawful “the sale within the United States after im-
`portation . . . of articles that—(i) infringe . . . .” The
`statute thus distinguishes the unfair trade act of
`importation from infringement by defining as un-
`fair the importation of an article that will infringe,
`i.e., be sold,
`“after
`importation.”
` 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 comple-
`tion of infringement.
`Id. at 1349 (alteration and emphasis in original) (citations
`omitted). The court held that “the Commission’s interpre-
`tation that the phrase ‘articles that infringe’ covers goods
`that were used by an importer to directly infringe post-im-
`portation as a result of the seller’s inducement is reasona-
`ble.” Id. at 1352–53.
`Comcast argues that Suprema should be limited to its
`facts, whereby the inducement liability must be attached
`to the imported article at the time of the article’s importa-
`tion. Comcast states that the imported X1 set-top boxes
`are incapable of infringement until the X1 set-top boxes are
`combined with Comcast’s domestic servers and its custom-
`ers’ mobile devices. Comcast contends that any inducing
`conduct of articles that infringe occurs entirely after the
`boxes’ importation.
`The Commission correctly held that Section 337 ap-
`plies to articles that infringe after importation. See Su-
`prema, supra. The Commission found:
`Moreover, even if the location of Comcast’s induc-
`ing conduct were legally relevant, and it is not,
`Comcast designed the X1 STBs to be used in an in-
`
`
`
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`12
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`COMCAST CORP. v. U.S. INT’L TRADE COMM’N
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`fringing manner, and directed their manufacture
`overseas—requiring, among other things, overseas
`installation of the relevant software onto the STBs.
`Final ID at 9–12, 232, 234; Wing Shing Pdts. (BVI),
`Ltd. v. Simatelex Manufactory Co., 479 F.Supp.2d
`388, 409–11 (S.D.N.Y. 2007) (“[N]umerous courts
`have held that, in contrast to §§ 271 (a) and (c),
`§ 271 (b) applies to extraterritorial conduct.”); see
`also, e.g., Honeywell, Inc. v. Metz Apparatewerke,
`509 F.2d 1137, 1141–42 (7th Cir. 1975); MEMC
`Elec. Materials, Inc. v. Mitsubishi Materials Silicon
`Corp., 2006 WL 463525, at *7 (N.D. Cal. 2006).
`Comcast then directed the importation of those
`STBs to Comcast facilities in the United States. Fi-
`nal ID at 9–12. Comcast’s inducing activity took
`place overseas, prior to importation; it took place at
`importation; and it took place in the United States,
`after importation. See, e.g., id. at 9–12, 232–37,
`399.
`J.A. 85 n.13. It is undisputed that direct infringement of
`the ’263 and ’413 patents occurs when the imported X1 set-
`top boxes are fitted by or on behalf of Comcast and used
`with Comcast’s customers’ mobile devices. Reversible error
`has not been shown in the Commission’s determinations
`that the X1 set-top boxes imported by and for Comcast for
`use by Comcast’s customers are “articles that infringe” in
`terms of Section 337.
`
`B
`“Importer” under Section 337
`Section 337 prohibits the “importation into the United
`States, the sale for importation, or the sale within the
`United States after importation by the owner, importer, or
`consignee, of articles that” infringe a valid patent. 19
`U.S.C. § 1337(a)(1)(B)(i). Whether a party is an importer
`in terms of Section 337 is a question of fact, and the Com-
`mission’s finding is reviewed for support by substantial
`
`
`
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`COMCAST CORP. v. U.S. INT’L TRADE COMM’N
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`13
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`evidence. In re Orion Co., 71 F.2d 458, 462 (C.C.P.A. 1934)
`(“This is substantial evidence that, at the time of the acts
`complained of by the complainant, the Orion Company was
`an importer or consignee of slide fasteners.”).
`Comcast argues that it is not an importer of the X1 set-
`top boxes, in that the importer of record is ARRIS or Tech-
`nicolor. Comcast states that it does not physically bring
`the boxes into the United States and it does not exercise
`any control over the process of importation. The Commis-
`sion and Rovi respond that Comcast is an importer in terms
`of Section 337 because Comcast causes the X1 set-top boxes
`to enter the United States.
`The Final ID found that the X1 set-top boxes “are so
`tailored to Comcast’s system and requirements that they
`would not function within another cable operator’s sys-
`tem.” Final ID at *11. “Further, the software at issue in
`the heart of this investigation is attributable squarely to
`Comcast.” Id. The Final ID concluded that “the evidence
`shows that Comcast is sufficiently involved with the de-
`sign, manufacture, and importation of the accused prod-
`ucts, such that it is an importer for purposes of Section
`337.” Id.
`The Final ID sets forth extensive evidence of Comcast’s
`control over the importation of the X1 set-top boxes, includ-
`ing that Comcast requires that the X1 set-top boxes “ad-
`here to its specifications and acceptability standards.” Id.
`at *10. Comcast also “[p]rovides ARRIS and Technicolor
`with detailed technical documents” so the X1 set-top boxes
`“operate as required by Comcast within its network to pro-
`vide services to Comcast subscribers.” Id. The “products
`are designed only for Comcast” and Comcast restricts
`ARRIS’s “ability to sell the products without Comcast’s per-
`mission.” J.A. 135.
`The Final ID found that Comcast “[k]nows the im-
`ported products are manufactured abroad and imported
`into the United States” and requires ARRIS and
`
`
`
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`COMCAST CORP. v. U.S. INT’L TRADE COMM’N
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`Technicolor “to deliver the accused products to Comcast de-
`livery sites in the United States.” Final ID at *10–11. The
`Final ID found that “Comcast alone controls the volume of
`accused products that enter the United States, through
`forecasts and orders sent to ARRIS and Technicolor.” J.A.
`136.
`The Final ID also found that Comcast “[r]equires
`ARRIS and Technicolor to handle importation formalities,
`such as fees, documentation, licenses, and regulatory ap-
`provals.” Id. The Final ID concluded that “Comcast is suf-
`ficiently involved in the importation of the accused
`products that it satisfies the importation requirement, un-
`der 19 U.S.C. § 1337(A)(1)(B).” Final ID at *405.
`The full Commission concluded that Comcast is an im-
`porter of the X1 set-top boxes. The Commission stated that
`“Section 337, as applied to Comcast’s relevant conduct
`here, requires importation of articles, proof of direct in-
`fringement, and proof of inducement, all of which have
`been established by the record. It is no defense to the vio-
`lation of a trade statute that Comcast, from the United
`States, actively induces the infringement by its users as to
`the imported X1 STBs.” Comm. Op. at *12.
`The Commission’s findings of importation by or for
`Comcast of articles for infringing use are supported by sub-
`stantial evidence. The Commission’s determination of vio-
`lation of Section 337 is in conformity to the statute and
`precedent.
`
`III
`THE LIMITED EXCLUSION ORDER
`ARRIS and Technicolor argue that Section 337 limits
`exclusion orders to articles “imported by any person violat-
`ing the provision of this section.” 19 U.S.C. § 1337(d)(1).
`ARRIS and Technicolor argue that the limited exclusion or-
`der is improperly applied to them because they were found
`
`
`
`Case: 18-1450 Document: 148 Page: 15 Filed: 03/02/2020
`
`COMCAST CORP. v. U.S. INT’L TRADE COMM’N
`
`15
`
`not to be infringers or contributory infringers. The Final
`ID found that the X1 set-top boxes are non-infringing when
`imported, and that contributory infringement does not lie
`because the boxes as imported have non-infringing uses
`such as watching live television.
`The Commission responds that the exclusion order as
`applied to ARRIS and Technicolor is within ITC discretion
`to enforce Section 337, because the order is limited to im-
`portations on behalf of Comcast, of articles whose intended
`use is to infringe the patents at issue.
`The Commission has discretion in selecting a remedy
`that has a reasonable relation to the unlawful trade prac-
`tice. See Cisco Systems, Inc. v. U.S. Int’l Trade Comm’n,
`873 F.3d 1354, 1363 (Fed. Cir. 2017) (“Blocking imports of
`articles that induce patent infringement has a reasonable
`relationship to stopping unlawful trade acts.”). The Com-
`mission points out that ARRIS and Technicolor were re-
`spondents in the investigation, and the exclusion order is
`limited to articles imported on behalf of Comcast. On these
`facts, the limited exclusion order is within the Commis-
`sion’s discretion as reasonably related to stopping the un-
`lawful infringement, and is affirmed.
`CONCLUSION
`The rulings and remedial actions of the Commission
`are in accordance with law, and the underlying findings are
`supported by substantial evidence. The Commission’s de-
`cision and implementing orders are affirmed.
`AFFIRMED
`
`
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