The U.S. International Trade Commission (ITC) is authorized by Section 337 of the Tariff Act of 1930 to restrict the importation of articles that infringe patents and other intellectual property rights. In its ClearCorrect decision, which involves clear plastic teeth straighteners, a 5 – 1 ITC majority found that electronic data transmissions also qualify as articles under Section 337. A three‐judge panel at the Court of Appeals for the Federal Circuit recently issued a 2 – 1 verdict against the ITC, but that split ruling may be subject to further review.
Does the ITC’s decision in ClearCorrect reflect a correct reading of the statute, or has the majority gotten it wrong? If the judicial system eventually agrees with the Commission, will the precedent have only limited effect, or will Internet freedom be compromised by potential ITC scrutiny of imported digital data?