throbber
United States Court of Appeals
`for the Federal Circuit
`______________________
`
`SWAGWAY, LLC,
`Appellant
`
`v.
`
`INTERNATIONAL TRADE COMMISSION,
`Appellee
`
`SEGWAY, INC., DEKA PRODUCTS LIMITED
`PARTNERSHIP, NINEBOT (TIANJIN)
`TECHNOLOGY CO., LTD.,
`Intervenors
`______________________
`
`2018-1672
`______________________
`
`Appeal from the United States International Trade
`Commission in Investigation Nos. 337-TA-1007, 337-TA-
`1021.
`
`______________________
`
`OPINION ISSUED: May 9, 2019
`OPINION MODIFIED: August 14, 2019∗
`______________________
`
`
`
`∗ This opinion has been modified and reissued fol-
`lowing a combined petition for panel rehearing and rehear-
`ing en banc filed by Intervenors.
`
`

`

`2
`
`SWAGWAY, LLC v. ITC
`
`
`LAURENCE M. SANDELL, Mei & Mark LLP, Washington,
`DC, argued for appellant. Also represented by LEI MEI,
`ROBERT HALL, PHILIP ANDREW RILEY.
`
` MICHAEL LIBERMAN, Office of the General Counsel,
`United States International Trade Commission, Washing-
`ton, DC, argued for appellee. Also represented by DOMINIC
`L. BIANCHI, WAYNE W. HERRINGTON, PANYIN HUGHES,
`SIDNEY A. ROSENZWEIG.
`
` NICHOLAS A. BROWN, Greenberg Traurig LLP, San
`Francisco, CA, argued for intervenors. Also represented by
`JONATHAN D. BALL, New York, NY.
` ______________________
`
`Before DYK, MAYER, and CLEVENGER, Circuit Judges.
`CLEVENGER, Circuit Judge.
`This appeal was previously decided by our opinion
`dated May 9, 2019. Swagway, LLC v. Int’l Trade Comm’n,
`923 F.3d 1349 (Fed. Cir. 2019). Intervenors, Segway, Inc.,
`DEKA Products Ltd. Partnership, and Ninebot (Tianjin)
`Technology Co., Ltd. (collectively, “Segway”) thereafter
`filed a combined petition for panel rehearing and rehearing
`en banc which questioned Part III of our original decision.
`In Part III of our decision, we accepted Swagway’s condi-
`tional withdrawal of its argument regarding its consent or-
`der motion because we held that the International Trade
`Commission’s (“the Commission”) trademark determina-
`tions are not entitled to preclusive effect.1 The panel
`
`
`1 Oral Arg. at 35:04–35:09, 34:31–40 (agreeing to
`withdraw its argument regarding its consent order motion
`if this Court held that the Commission’s trademark deter-
`minations are not entitled to preclusive effect).
`
`

`

`3
`
`SWAGWAY, LLC v. ITC
`
`invited a response from the Commission and Swagway,
`LLC (“Swagway”).
`After considering Segway’s petition and the Commis-
`sion’s and Swagway’s responses, we grant Segway’s peti-
`tion for panel rehearing to the extent that we vacate Part
`III of our original decision on the issue of the preclusive
`effect of the Commission’s trademark decisions under 19
`U.S.C. § 1337 (“§ 337”). The court’s opinion is modified ac-
`cordingly. The remaining portions of the opinion are un-
`changed.
`Swagway, LLC appeals the Final Determination of the
`International Trade Commission, which found that Swag-
`way violated 19 U.S.C. § 1337. Because we conclude that
`the Commission did not err in its determination, we affirm.
`BACKGROUND
`Segway filed a Complaint with the Commission on May
`18, 2016, alleging violations of § 337 based on infringement
`of six patents not at issue in the current appeal, and two
`trademarks: U.S. Trademark Registration Nos. 2,727,948
`(“the ’948 mark”) and 2,769,942 (“the ’942 mark”).
`Segway owns both the ’948 and ’942 marks. The ’948
`mark is the non-stylized SEGWAY mark, which covers
`“motorized, self-propelled, wheeled personal mobility de-
`vices, namely, wheelchairs, scooters, utility carts, and
`chariots.” J.A. 220. The ’942 mark is the stylized version
`of the SEGWAY mark covering the same goods as its non-
`stylized counterpart. The Complaint filed with the Com-
`mission alleged that Swagway’s self-balancing hoverboard
`products, marketed under the names SWAGWAY X1 and
`X2, as well as SWAGTRON T1 and T3, infringed Segway’s
`marks.
`On August 16, 2016, Segway filed another Complaint
`with the Commission alleging infringement of the same pa-
`tents and trademarks, but naming additional respondents.
`The Commission instituted investigations based on both
`
`

`

`4
`
`SWAGWAY, LLC v. ITC
`
`
`complaints, consolidated them, and assigned an adminis-
`trative law judge (“ALJ”).
`On March 21, 2017, Swagway moved for partial termi-
`nation of the investigation regarding the trademark in-
`fringement allegations on the basis of a consent order
`stipulation. Swagway amended its consent order stipula-
`tion and the corresponding proposed consent order on two
`separate occasions. The proposed consent order stipulated,
`among other things, that Swagway would not sell or import
`“SWAGWAY-branded personal transporter products as
`well as all components thereof, packaging and manuals
`therefor.” J.A. 560. Segway opposed the stipulation and
`proposed consent order based on the fact that it addressed
`only a subset of the claims and products at issue in the in-
`vestigation, and because, according to Segway, it would al-
`low Swagway to relitigate the issue of trademark
`infringement with respect to the products covered by the
`order.
`During the investigation, the Commission granted Seg-
`way’s motions to terminate the investigation as to four of
`the six patents. By the time the ALJ held a hearing in the
`investigation, only U.S. Patent Nos. 6,302,230 (“the ’230
`patent”) and 7,275,607 (“the ’607 patent”), and the ’942 and
`’948 trademarks remained.
`The ALJ scheduled a hearing in the consolidated inves-
`tigation for April 18, 2017. Prior to the hearing, the ALJ
`held a prehearing conference during which counsel for
`Swagway inquired about the pending motion for consent
`order on which it had yet to receive a ruling. The ALJ in-
`dicated that, because of the number of versions of the con-
`sent order and the amount of briefing, “it certainly [wasn’t]
`going to be ruled on . . . before the end of the hearing.” J.A.
`3034.
`After the hearing, the ALJ issued a Final Initial Deter-
`mination (“ID”), finding that the respondents’ accused
`products did not infringe the asserted claims of the ’230
`
`

`

`5
`
`SWAGWAY, LLC v. ITC
`
`and ’607 patents, and that the technical prong of the do-
`mestic industry requirement was not satisfied for those pa-
`tents. The ID also found that Swagway’s use of the
`SWAGWAY designation, but not the SWAGTRON designa-
`tion, infringed the ’942 and ’948 trademarks. The ALJ’s
`trademark infringement determination was based on its
`analysis of six “likelihood of confusion” factors: (1) evidence
`of actual consumer confusion; (2) the degree of similarity in
`appearance and pronunciation between the marks; (3) the
`intent of the actor in adopting the designation; (4) the rela-
`tion in use and manner of marketing between the products
`bearing the mark or designation; (5) the degree of care ex-
`ercised by consumers of the marked or designated prod-
`ucts; and (6) the strength of the mark.
` As to the first factor, the ALJ found that there was
`“overwhelming evidence” of actual confusion between the
`SWAGWAY designation and the Segway marks. J.A. 230.
`But the ALJ found only de minimis actual confusion be-
`tween the SWAGTRON designation and the Segway
`marks.
`The ALJ found that the second factor weighed in favor
`of finding a likelihood of confusion because the Segway
`marks and SWAGWAY designation looked alike and had
`similar pronunciations. The ALJ found the opposite for the
`SWAGTRON designation.
`The ALJ determined that Swagway’s founder did not
`intend to infringe Segway’s trademarks based on his testi-
`mony that he independently derived the SWAGWAY des-
`ignation, and his testimony that he changed the
`designation to SWAGTRON after receiving a cease-and-de-
`sist letter from Segway’s counsel. The ALJ did not defini-
`tively state whether the intent of the actor factor weighed
`in favor of or against a likelihood of confusion.
`As to the fourth factor, the ALJ found that Segway’s
`and Swagway’s products are sold on the same websites and
`in the same stores. Thus, the products exist in a common
`
`

`

`6
`
`SWAGWAY, LLC v. ITC
`
`
`commercial channel. The ALJ determined, however, that
`the goods offered in connection with the asserted trade-
`marks are significantly more expensive than the
`SWAGWAY and SWAGTRON products. The ALJ there-
`fore found that the fourth factor weighed against a finding
`that the SWAGWAY and SWAGTRON designations were
`likely to cause consumer confusion.
`The ALJ did not make a determination on the fifth fac-
`tor because neither party presented evidence going to the
`degree of care exercised by consumers in purchasing prod-
`ucts associated with the asserted trademarks or the
`SWAGWAY and SWAGTRON designations.
`The ALJ found that the conceptual and commercial
`strength of the asserted trademarks was high due to the
`fact that the term “Segway” was coined “for the sole pur-
`pose of functioning as a trademark” and because consum-
`ers strongly associated the SEGWAY brand with the
`products. J.A. 235-37.
`The ALJ’s ID did not mention Swagway’s motion for
`termination based on its consent order stipulation. The
`ALJ stated in a footnote to its ID that “[a]ny pending mo-
`tion that has not been adjudicated is denied, unless other-
`wise noted.” J.A. 62 n.2. The ID said nothing more about
`Swagway’s motion for termination based on a consent or-
`der stipulation.
`Swagway subsequently filed a petition for review of the
`ALJ’s ID. As relevant here, Swagway appealed the denial
`of its consent order motion and the ID’s finding that the
`SWAGWAY mark infringed the ’942 and ’948 trademarks.
`The Commission issued a notice of its determination to
`review the ID’s finding that actual confusion existed with
`regard to the SWAGWAY mark. The Commission deter-
`mined not to review the ALJ’s denial of Swagway’s consent
`order motion.
`
`

`

`7
`
`SWAGWAY, LLC v. ITC
`
`The Commission issued an opinion reversing the ALJ’s
`determination on the existence of actual confusion because
`the incidents of actual confusion were small as compared
`to the volume of sales of SWAGWAY-branded products,
`and Segway failed to rebut Swagway’s argument and sup-
`porting evidence that at least some of the proffered actual
`confusion evidence was unreliable. The Commission there-
`fore modified the ID, finding that evidence of actual confu-
`sion “d[id] not weigh in favor of likelihood of confusion.”
`J.A. 38. Nonetheless, the Commission agreed with the
`ALJ’s likelihood-of-confusion determination and its trade-
`mark infringement determination because the “[e]vidence
`supporting the other factors considered by the ID, includ-
`ing the degree of similarity between the two marks in ap-
`pearance, the pronunciation of the words, and the strength
`of the SEGWAY marks strongly support[ed] the ID’s find-
`ing of infringement.” Id.
`Swagway appeals the Commission’s decision finding
`that Swagway infringed the ’942 and ’948 marks. Swag-
`way also appeals the Commission’s failure to enter the pro-
`posed consent order. We have jurisdiction over Swagway’s
`appeal pursuant to 28 U.S.C. § 1295(a)(6).
`DISCUSSION
`I. Standard of Review
`We review the ITC’s legal determinations de novo and
`its factual findings for substantial evidence. Converse, Inc.
`v. Int’l Trade Comm’n, 909 F.3d 1110, 1115 (Fed. Cir.
`2018).
`The Commission’s ultimate likelihood-of-confusion de-
`termination is a legal determination that we review de
`novo. Id.; In re I.AM.Symbolic, LLC, 866 F.3d 1315, 1322
`(Fed. Cir. 2017) (“Likelihood of confusion is a question of
`law based on underlying findings of fact.”). We also accord
`de novo review to the weight given to each likelihood-of-
`confusion factor. Cf. Stone Lion Capital Partners, L.P. v.
`
`

`

`8
`
`SWAGWAY, LLC v. ITC
`
`
`Lion Capital LLP, 746 F.3d 1317, 1322 (Fed. Cir. 2014) (re-
`viewing the weight given to the similarity-of-the-marks
`factor for legal error). The likelihood-of-confusion determi-
`nation is based upon factual underpinnings that this Court
`reviews for substantial evidence. In re Mighty Leaf Tea,
`601 F.3d 1342, 1346 (Fed. Cir. 2010). For example, the
`question of the similarity between two marks and the re-
`latedness of goods are factual determinations. See Shen
`Mfg. Co. v. Ritz Hotel, Ltd., 393 F.3d 1238, 1241 (Fed. Cir.
`2004).
`
`II. Trademark Infringement
`To prove trademark infringement, the owner of the as-
`serted trademark must demonstrate that consumers would
`likely confuse the alleged infringer’s mark with the as-
`serted mark. Al-Site Corp. v. VSI Int’l, Inc., 174 F.3d 1308,
`1330 (Fed. Cir. 1999). Whether a likelihood of confusion
`exists is determined using the factors set out in In re E.I.
`DuPont DeNemours & Co., 476 F.2d 1357 (C.C.P.A. 1973).
`See In re Guild Mortg. Co., 912 F.3d 1376, 1378–79 (Fed.
`Cir. 2019).2 The DuPont factors are:
`
`
`2 Our predecessor court articulated the DuPont
`framework in assessing likelihood of confusion for purposes
`of registration of trademarks. Recently, the Supreme
`Court ruled that “likelihood of confusion for purposes of
`registration is the same standard as likelihood of confusion
`for purposes of infringement.” B & B Hardware, Inc. v.
`Hargis Indus., Inc., 135 S. Ct. 1293, 1307 (2015). The pre-
`sent matter comes to us from the International Trade Com-
`mission’s ruling under 19 U.S.C. § 1337 relating to
`trademark infringement. Accordingly, we apply our
`DuPont framework to the likelihood of confusion issue in
`reviewing the Commission’s infringement determination.
`
`

`

`9
`
`SWAGWAY, LLC v. ITC
`
`(1) The similarity or dissimilarity of the marks in
`their entireties as to appearance, sound, connota-
`tion and commercial impression.
`(2) The similarity or dissimilarity and nature of
`the goods or services as described in an application
`or registration or in connection with which a prior
`mark is in use.
`(3) The similarity or dissimilarity of established,
`likely-to-continue trade channels.
`(4) The conditions under which and buyers to
`whom sales are made, i.e. “impulse” vs. careful, so-
`phisticated purchasing.
`(5) The fame of the prior mark (sales, advertising,
`length of use).
`(6) The number and nature of similar marks in use
`on similar goods.
`(7) The nature and extent of any actual confusion.
`(8) The length of time during and conditions under
`which there has been concurrent use without evi-
`dence of actual confusion.
`(9) The variety of goods on which a mark is or is
`not used (house mark, “family” mark, product
`mark).
`(10) The market interface between applicant and
`the owner of a prior mark ....
`(11) The extent to which applicant has a right to
`exclude others from use of its mark on its goods.
`(12) The extent of potential confusion,
`i.e.,
`whether de minimis or substantial.
`(13) Any other established fact probative of the ef-
`fect of use.
`
`

`

`10
`
`SWAGWAY, LLC v. ITC
`
`
`Id. at 1379.
`
`In this case, the ALJ considered only six factors that
`are nearly identical to those outlined in DuPont: (1) actual
`confusion; (2) the intent of the actor in adopting the desig-
`nation; (3) the relation in use and manner of marketing be-
`tween the goods and services marked by the actor and
`those by the other; (4) the degree of similarity between the
`designation and the trademark; (5) the strength of the
`mark; and (6) the degree of care likely to be exercised by
`purchasers. The Commission need not consider every
`DuPont factor. Shen Mfg., 393 F.3d at 1241. It is required
`to consider only those factors which are supported by evi-
`dence in the record. Id. Moreover, neither party challenges
`the Commission’s choice of DuPont factors.
`Swagway argues that the Commission accorded the
`wrong weight to the actual confusion factor. According to
`Swagway, lack of actual confusion evidence is especially
`probative in cases such as this where the products bearing
`the registered trademarked and the allegedly infringing
`products are sold concurrently over a substantial period of
`time. Swagway contends, therefore, that the Commission
`should have found the lack of actual confusion essentially
`dispositive in this case.
`First, while the DuPont factors recognize the relevance
`of concurrent use without evidence of actual confusion, we
`have never indicated that the concurrent use factor always
`bars a likelihood-of-confusion finding. Instead, we have
`found that “[s]uch evidence weighs against a likelihood of
`confusion, but must then be balanced against the other ev-
`idence of record.” Guild, 912 F.3d at 1381.
`Second, the Commission never determined that the
`lack of actual confusion evidence cannot in any circum-
`stance weigh against a likelihood-of-confusion finding. In-
`stead, it found that the lack of actual confusion “d[id] not
`weigh in favor of a finding of a likelihood of confusion.” J.A.
`38. Swagway does not argue on appeal that its evidence
`
`

`

`11
`
`SWAGWAY, LLC v. ITC
`
`presented below warranted a finding of long-term, concur-
`rent use in the same channels of trade. See Guild, 912 F.3d
`at 1381 (holding that the period during which two marks
`are used concurrently in similar geographic markets and
`channels of trade is “relevant when assessing whether the
`absence of actual confusion is indicative of the likelihood of
`confusion”). Thus, it failed to establish that the absence of
`actual confusion evidence should even weigh against, let
`alone strongly against, a likelihood-of-confusion finding
`under our precedent.
`Swagway also argues more generally that, after revers-
`ing the ALJ’s determination with regard to actual confu-
`sion, the Commission failed to “properly re-weigh the
`likelihood-of-confusion factors.” Appellant’s Br. 25. The
`Commission did, however, reweigh the factors and found
`that the “[e]vidence supporting the other factors considered
`by the ID, including the degree of similarity between the
`two marks in appearance, the pronunciation of the words,
`and the strength of the SEGWAY marks strongly support
`the ID’s finding of infringement.” J.A. 38. To the extent
`that Swagway argues that the Commission erred in its de-
`termination because “only two of the six factors considered
`. . . favor a likelihood-of-confusion finding,” while “three
`factors . . . weigh against such a finding,” that argument is
`unpersuasive as a matter of both fact and law. Appellant’s
`Br. 26.
`The ALJ never stated that the “intent of the actor” fac-
`tor weighed in favor of or against a likelihood-of-confusion
`finding. It stated only that there appeared “to be concrete
`actions taken by [Swagway’s founder] Mr. Zhu that lend
`credibility to his testimony regarding his lack of intent to
`infringe the Segway trademarks.” J.A. 232. The Commis-
`sion also did not find that the lack of actual confusion evi-
`dence weighed against a likelihood-of-confusion finding.
`Instead, it found that the lack of such evidence did not
`weigh in favor of such a finding. There was, therefore, only
`one factor, “relation in use and manner of marketing,” that
`
`

`

`12
`
`SWAGWAY, LLC v. ITC
`
`
`the Commission found to weigh against a likelihood of con-
`fusion between the asserted trademarks and the
`SWAGWAY designation.
`Moreover, the likelihood-of-confusion analysis cannot
`be reduced to a simple tally of the factors. The factors are
`accorded different weights in different circumstances. See
`M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378,
`1382 (Fed. Cir. 2006) (noting that it is necessary to con-
`sider only the DuPont factors relevant to and of record in a
`specific case, and that any one factor may control a partic-
`ular case). Our precedent supports the Commission’s find-
`ing that the strength of the asserted trademark, along with
`the comparable similarity of the asserted and allegedly in-
`fringing marks, can weigh strongly in favor of a likelihood
`of confusion. See Han Beauty, Inc. v. Alberto-Culver Co.,
`236 F.3d 1333, 1336 (Fed. Cir. 2001) (“While it must con-
`sider each factor for which it has evidence, the Board may
`focus its analysis on dispositive factors, such as similarity
`of
`the marks and
`relatedness of
`the goods.”);
`I.AM.Symbolic, 866 F.3d at 1324 (finding that the similar-
`ity of the marks weighed heavily in favor of a likelihood of
`confusion); Kenner Parker Toys Inc. v. Rose Art Indus., Inc.,
`963 F.2d 350, 352 (Fed. Cir. 1992) (“The fifth [D]uPont fac-
`tor . . . plays a dominant role in cases featuring a famous
`or strong mark.”); Specialty Brands, Inc. v. Coffee Bean Dis-
`tribs., Inc., 748 F.2d 669, 675 (Fed. Cir. 1984) (holding that
`“[w]hen an opposer’s trademark is a strong, famous mark,
`it can never be of little consequence” in a likelihood-of-con-
`fusion analysis (internal quotation marks omitted)).
`Swagway also takes issue with the Commission’s fail-
`ure to weigh Segway’s lack of survey evidence against a
`likelihood-of-confusion finding. According to Swagway,
`Segway had the financial means to conduct surveys, and
`thus, its failure to do so should create “an adverse inference
`that such a survey would not have shown a likelihood of
`confusion with respect to the asserted trademarks.” Appel-
`lant’s Br. 27. But the adverse inference Swagway
`
`

`

`13
`
`SWAGWAY, LLC v. ITC
`
`encourages us to adopt belies our precedent. Consumer
`survey evidence is not required to show a likelihood of con-
`fusion. Midwestern Pet Foods, Inc. v. Societe des Produits
`Nestle S.A., 685 F.3d 1046, 1054 (Fed. Cir. 2012). We have
`also previously declined to infer that the lack of survey ev-
`idence indicates that such evidence would be harmful to
`the party alleging infringement. Id. The Commission
`therefore did not err in according no weight to Segway’s
`lack of survey evidence.
`III. Consent Order Motion
`The Commission’s rules grant an ALJ the discretion to
`terminate a § 337 investigation by consent order. 19 C.F.R.
`§ 210.21(c) (“An investigation before the Commission may
`be terminated . . . on the basis of a consent order.” (empha-
`sis added)). An ALJ’s discretion in considering a motion for
`consent order resolution of an investigation is somewhat
`cabined. When an ALJ exercises discretion to grant a pro-
`posed consent order, the Commission’s rules require the
`ALJ to consider the impact of the proposed termination by
`consent order on the “public interest,” including “the effect
`of the proposed settlement on the public health and wel-
`fare, competitive conditions in the U.S. economy, the pro-
`duction of like or directly competitive articles in the United
`States, and U.S. consumers.” 19 C.F.R. § 210.50(b)(2). The
`Commission often finds that the public interest favors en-
`try of consent orders to conserve public resources and avoid
`unnecessary litigation. See, e.g., Certain Integrated Circuit
`Chipsets & Prod. Containing Same, Inv. No. 337-TA-428,
`USITC Order No. 16 (July 26, 2000) (“In addition[,] the
`public interest favors settlement to avoid needless litiga-
`tion and to conserve public resources.”); Certain Vehicle
`Sec. Sys. & Components Thereof, Inv. No. 337-TA-355,
`USITC Order No. 16 (Feb. 7, 1994) (denying the motion to
`terminate the investigation because proceeding with the
`investigation would “not require a substantial expenditure
`of public or private resources, especially in comparison
`with those already used in the prehearing phase of the
`
`

`

`14
`
`SWAGWAY, LLC v. ITC
`
`
`investigation”). The pertinent regulations do not specify
`the extent to which an ALJ’s discretion is cabined when an
`ALJ decides to deny a consent order motion. We assume
`for purposes of this appeal, but without deciding the ques-
`tion, that an ALJ is guided in denying a consent order mo-
`tion by the same criteria as are required when granting a
`motion.
`A party’s proposal to resolve an investigation by con-
`sent “shall be submitted as a motion to the administrative
`law judge with a stipulation that incorporates a proposed
`consent order.” 19 C.F.R. § 210.21(c)(1)(ii). Commission
`rules specify in detail the required contents of the neces-
`sary stipulation. See id. § 210.21(c)(3)–(4). Such a motion
`may be filed at any time before the commencement of the
`hearing before the ALJ, but “for good cause shown, the ad-
`ministrative law judge may consider such a motion during
`or after a hearing.” Id. § 210.21(c)(1)(ii). The filing of a
`consent order motion “shall not stay proceedings before the
`administrative law judge unless the administrative law
`judge so orders.” Id. The Commission’s rules further spec-
`ify that if an ALJ exercises discretion to grant a consent
`order motion, the grant must be by issuance of an initial
`determination, id. § 210.42(c), “promptly file[d] with the
`Commission.” Id. § 210.21(c)(1)(ii). But if discretion is ex-
`ercised to deny the motion, the regulation requires that the
`denial be in the form of an order. Id. § 210.42(c).
` The § 337 investigation in this case involved allega-
`tions of patent and trademark infringement. Swagway was
`accused of infringing six Segway patents, and two Segway
`trademarks. Swagway sought to resolve the trademark as-
`pects of the case with respect to the SWAGWAY-branded
`products, but not with respect to the SWAGTRON-branded
`products, by consent order resolution. Accordingly, ten
`months after the investigation began in this case, on March
`21, 2017, Swagway filed a § 210.21(c)(3)–(4)-compliant pro-
`posed consent order motion for resolution of the one trade-
`mark dispute, which Segway opposed. Swagway filed an
`
`

`

`15
`
`SWAGWAY, LLC v. ITC
`
`amended proposed consent order motion, which Segway
`also opposed. On April 5, 2017, Swagway requested leave
`to file a response to Segway’s opposition, and sought to sub-
`mit a third proposed consent order. During a hearing on
`April 18, 2017, Swagway reminded the ALJ about the
`pending motions, saying, “[o]ne other issue was that Swag-
`way has a pending motion for consent order that we haven’t
`received a ruling on.” J.A. 3034. The ALJ replied, “I think
`we’ve now had how many versions of that?” Id. “Three,
`your Honor,” was the answer. Id. The ALJ responded,
`“[t]hree. . . . we’ve had all kinds of briefing. It certainly
`isn’t going to be ruled on . . . . before the end of the hearing.
`. . . The hearing moves on.” Id. And the hearing on the
`merits began later that day. On August 10, 2017, the ALJ
`issued the final ID in the case. The second footnote to the
`final ID stated: “Any pending motion that has not been ad-
`judicated is denied, unless otherwise noted.” J.A. 62.
`Swagway’s motion for consent order was thereby denied.
`When the ALJ determined to proceed with a hearing
`on the merits, he had before him the third version of Swag-
`way’s proposed consent order. By that time, considerable
`party and judicial resources had been expended in the case.
`The parties had completed fact and expert discovery, filed
`summary judgment motions, served both direct and rebut-
`tal witness statements containing all the direct testimony
`that would be offered at the evidentiary hearing, and
`served all direct and rebuttal exhibits.
`Swagway petitioned the Commission for review of the
`ALJ’s final ID and remedial Order. Swagway raised the
`subject of the consent order motion in its petition for re-
`view. Swagway informed the Commission that the ALJ vi-
`olated § 210.42(c) by denying its consent order motion in
`the ID rather than in a separate order. Otherwise, Swag-
`way’s complaint with the denial of its consent order motion
`was that (a) it fully complied with all the regulations con-
`cerning content and (b) in Swagway’s view, granting the
`motion would have promoted the public interest. The
`
`

`

`16
`
`SWAGWAY, LLC v. ITC
`
`
`Commission’s final decision declined to review the ALJ’s
`denial of Swagway’s consent order motion. In doing so, the
`Commission found no error in the ALJ’s disposition of the
`proposed consent order motion.
`In its appeal to this court, Swagway shifts the focus of
`its complaint about the ALJ’s denial of its consent order
`motion. Now Swagway makes a double-barrel argument
`that the denial is arbitrary, capricious and consequently a
`violation of the Administrative Procedure Act (“APA”).
`Swagway asks this Court to vacate the Commission’s deci-
`sion and remand for consideration of the consent order mo-
`tion. Alternatively, Swagway requests that we reverse the
`Commission’s denial of the consent order motion and direct
`the Commission to enter the proposed consent order.3
`
`
`3 As an initial matter, the Commission contends that
`this Court lacks jurisdiction over the consent order motion
`issue. We find that argument unpersuasive. Under 28
`U.S.C. § 1295, this Court has jurisdiction to “review the fi-
`nal determinations of the . . . Commission relating to unfair
`practices in import trade, made under section 337 of the
`Tariff Act of 1930 (19 U.S.C. 1337).” 28 U.S.C. § 1295(a)(6).
`With the jurisdiction to review the Commission’s final de-
`terminations also comes the jurisdiction to review matters
`ancillary to or affecting the validity of those final determi-
`nations. See Refractarios Monterrey, S. A. v. Ferro Corp.,
`606 F.2d 966, 970 n.10 (C.C.P.A. 1979) (“[S]ome review of
`material which may be ancillary to the final determination
`is necessary.”); cf. Viscofan, S.A. v. U.S. Int’l Trade
`Comm’n, 787 F.2d 544, 552 (Fed. Cir. 1986) (finding that
`we had no jurisdiction to review the Commission’s refusal
`to declassify confidential business information because the
`refusal “was unrelated to the propriety of the exclusion or-
`der”). The consent order motion issue clearly affects the
`propriety of the final determination on the merits, and thus
`we have jurisdiction to review the denial of that motion.
`
`

`

`17
`
`SWAGWAY, LLC v. ITC
`
`Swagway first argues that the Commission’s failure to
`provide an express explanation for denial of the consent or-
`der motion violates the APA, as an action without explana-
`tion can be arbitrary and can frustrate appellate review.
`The caselaw, however, does not require that agencies ex-
`plicitly spell out their rationale or reasoning in perfect de-
`tail or clarity as long as we can discern the path the agency
`followed. See Bowman Transp., Inc. v. Arkansas-Best
`Freight Sys., Inc., 419 U.S. 281, 286 (1974) (“[W]e will up-
`hold a decision of less than ideal clarity if the agency’s path
`may reasonably be discerned.”); see also Ariosa Diagnostics
`v. Verinata Health, Inc., 805 F.3d 1359, 1365 (Fed. Cir.
`2015) (“We may affirm an agency ruling if we may reason-
`ably discern that it followed a proper path, even if that path
`is less than perfectly clear.”).
`Here, the ALJ’s, and therefore the Commission’s, rea-
`son for denying Swagway’s consent order motion is clear
`from the record. The ALJ received three versions of a pro-
`posed consent order, and briefing on the consent order was
`not complete until just seven days before the evidentiary
`hearing. By that point, the parties had expended consider-
`able resources completing fact and expert discovery, final-
`izing exhibits and witness statements, and preparing for
`the hearing. Though Swagway could have done so under
`the Commission’s rules, it never requested that the ALJ
`stay the proceedings pending resolution of its consent order
`motion. Thus, as the ALJ remarked, “the hearing move[d]
`on.” J.A. 3034. Because at that stage in the investigation
`the public interest in avoiding unnecessary litigation could
`no longer weigh in favor of granting the motion, the ALJ
`denied it. Such a decision was within the ALJ’s discretion
`under the Commission’s rules, and we can find no abuse of
`that discretion, and no violation of the APA.
`Second, Swagway argues that the Commission’s denial
`of the consent order motion was arbitrary and capricious
`because the denial occurred in a footnote to the ID, as op-
`posed to in an order, in violation of the Commission’s rules.
`
`

`

`18
`
`SWAGWAY, LLC v. ITC
`
`
`The rule is clear: grants are in IDs and denials are in or-
`ders. 19 C.F.R. § 210.42(c)(1). In Align Technology, Inc. v.
`International Trade Commission, we held that the Com-
`mission is bound to follow and must strictly comply with its
`rules, including the ones in § 210.42(c), unless it waives,
`suspends, or amends them pursuant to 19 C.F.R.
`§ 201.4(b). 771 F.3d 1317, 1325 (Fed. Cir. 2014). Here, the
`ALJ failed to follow § 210.42(c)(1), and the Commission
`propagated that error by refusing to correct the ALJ’s mis-
`take on r

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