Justia U.S. Federal Circuit Court of Appeals Opinion Summaries

Articles Posted in International Trade

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The Department of Commerce conducted its ninth administrative review of an antidumping duty order on chlorinated isocyanurates from China, 19 U.S.C. 1677(18)(A), and assigned Kangtai, selected by Commerce as a mandatory respondent, a 0% antidumping duty margin. After a tenth review, Commerce assigned Kangtai, again a mandatory respondent, a 35.05% rate. Kangtai filed a complaint, asserting Commerce improperly instructed Customs to assess an anti-dumping duty margin on 18 of Kangtai’s subject merchandise entries at a rate higher than the zero percent rate calculated for Kangtai’s entries in the Review 9 Final Results. The Court of International Trade dismissed the complaint, concluding that it lacked jurisdiction under 28 U.S.C. 1581(i). The Federal Circuit affirmed. The Trade Court’s residual jurisdiction may not be invoked when jurisdiction under another section 1581 subsection could have been available unless the remedy provided under that other subsection would be manifestly inadequate. Kangtai could have sought relief under section 1581(c) because the true nature of Kangtai’s action is a challenge to Commerce’s determination to assess antidumping duties on entries, rather than on sales, made during the relevant period of review. Kangtai did not demonstrate that relief under 1581(c) would have been manifestly inadequate. Not only could Kangtai have challenged Commerce’s decision to assess duties on entries in the Review 9 Results, Kangtai actually did file a complaint contesting the Review 10 Final Results. View "Juancheng Kangtai Chemical Co. v. United States" on Justia Law

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Anjinomoto’s 655 patent claims E. coli bacteria that have been genetically engineered to increase their production of aromatic L-amino acids, such as L-tryptophan, during fermentation, as well as methods of producing aromatic L-amino acids using such bacteria. Ajinomoto filed a complaint against CJ with the International Trade Commission, alleging that CJ was importing certain products that infringed the patent. CJ used several strains of E. coli to produce L-tryptophan products, which it then imported into the United States. The Commission determined that CJ’s earlier strains did not infringe but that CJ’s two later strains did, and that the relevant claim of the 655 patent is not invalid for lack of an adequate written description. The Federal Circuit affirmed, upholding the Commission’s construction of “replacing the native promoter . . . with a more potent promoter.” The court rejected CJ’s claim of prosecution history estoppel and held that the 655 patent expressly provides four examples of “more potent promoters,” so that the Commission supportably found that a skilled artisan could make relatively predictable changes to the native promoter to arrive at a more potent promoter. View "Ajinomoto Co., Inc. v. International Trade Commission" on Justia Law

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Hymer imported vehicles into the U.S. from Canada. Customs classified them under Harmonized Tariff Schedule of the United States (HTSUS) 8703.24.00, which applies a tariff of 2.5% to “motor vehicles principally designed for transporting persons.” Hymer filed a protest, arguing that the entries were entitled to duty-free treatment under HTSUS 9802.00.50 and North American Free Trade Agreement Article 307, “American Goods Returned,” as qualifying goods that reenter the U.S. customs territory after repairs or alterations in Canada or Mexico. Hymer requested that Customs “suspend action on th[e] protest” until the Court of International Trade (CIT) issued a decision in other cases (Pleasure-Way) addressing whether van-based motorhomes—similar to the Hymer vehicles —qualified for preferential tariff treatment. In Pleasure-Way, the Federal Circuit affirmed that HTSUS 9802.00.50 did not apply; the vehicles were liquidated at 2.5%. While Pleasure-Way was pending, a Customs Import Specialist checked “Approved” on Hymer’s Protest Form, which was sent to Hymer without a refund check or any explanations. Later, an Import Specialist updated Customs’ electronic system to reflect that the protest was suspended. Hymer sought an order directing Customs to reliquidate the entries of the vehicles under HTSUS 9802.00.50, asserting CIT jurisdiction under 28 U.S.C. 1581(i)(1) and (i)(4), on grounds that Customs’ failure to provide a refund check constituted unlawfully withheld action under the Administrative Procedure Act. The Federal Circuit reversed CIT's judgment in favor of the government. CIT’s assertion of residual jurisdiction under 28 U.S.C. 1581(i) was improper because a civil action for contesting the denial of protests could have been available under 28 U.S.C. 1581(a), and the remedy provided under 1581(a) is not manifestly inadequate. View "Erwin Hymer Group v. United States" on Justia Law

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Quiedan imports agricultural stakes produced in China for use in training grape vines and other plants. Each stake is made of steel concrete reinforcing bar (rebar) by cutting rebar to a length of four to five feet, then sharpening one end to a point to ease driving the stake into the ground. The Department of Commerce concluded that Quiedan’s stakes are clearly within the scope of an antidumping duty order covering rebar from China. The Court of International Trade and Federal Circuit affirmed. Under the Rebar Order as modified by the 2007 Continuation, the “product covered is all steel concrete reinforcing bars (rebar) sold in straight lengths,” but “[s]pecifically excluded are plain rounds (i.e., non-deformed or smooth bars) and rebar that has been further processed through bending or coating.” The use of the rebar is immaterial and its physical properties and fabrication fall within the scope of the order. View "Quiedan Co. v. United States" on Justia Law

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In 2016, the U.S. Department of Commerce issued its final determination in its investigation into whether the Korean government had provided, to Korean producers and exporters of certain corrosion-resistant steel products (CORE), subsidies warranting the imposition of countervailing duties on the products when imported into the United States. Nucor and other U.S. CORE producers, which had requested the investigation, alleged that the Korean government had provided subsidies through its sale of electricity to Korean CORE producers. Korea Electric Power Corporation (KEPCO) as the seller of electricity to users in Korea, including the CORE producers at issue. The Korean government owns and controls KEPCO, including regulating KEPCO’s prices. Only a minimal amount of electricity is supplied directly to consumers on a localized basis by independent power producers. Commerce found no such electricity-sale subsidy while finding some other subsidies. The Court of International Trade affirmed as to electricity sales. The Federal Circuit affirmed. Commerce’s decision is with the statute because Commerce found not only that KEPCO’s pricing was non-discriminatory but also that the pricing ensured cost recovery. View "Nucor Corp. v. United States" on Justia Law

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Hyosung and Diebold manufacture and sell ATMs. Diebold filed a complaint with the International Trade Commission claiming that Hyosung’s imported ATMs infringe its 616 and 631 patents and their importation violates 19 U.S.C. 1337(a)(1)(B). The 616 patent claims an ATM rollout tray that allows for easier servicing of its internal components. The 631 patent relates to a particular method for reading magnetic ink character recognition data on checks (e.g., ink used for the account and routing numbers) that are inserted into an ATM regardless of their width or orientation. The ITC concluded that Hyosung’s accused products infringed both patents; that the asserted claims were not invalid; and that the domestic industry requirement was met for both patents; it entered a limited exclusion order and cease and desist orders against Hyosung. Hyosung redesigned its products to avoid infringing the 616 patent and sought an administrative ruling by U.S. Customs and Border Protection. Customs concluded that the newly redesigned products did not infringe and were therefore not covered by the ITC’s limited exclusion order. The Federal Circuit affirmed as to the 631 patent and concluded that the appeal was moot as to the 616 patent, which has expired, so the ITC’s orders as to that patent have no prospective effect. View "Hyosung TNS Inc. v. International Trade Commission" on Justia Law

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In 2011, the Commerce Department posted notice permitting interested parties to request administrative review of duty orders on ball bearings and parts thereof from France, Germany, Italy, Japan, and the United Kingdom. BMW requested administrative review of the duties on its imports from the U.K. The duty orders on ball bearings and parts thereof from Japan and the United Kingdom, first imposed in 1989, were undergoing sunset review by Commerce and the International Trade Commission (ITC), which initially decided against revocation. The ITC later determined that revocation would not likely lead to the continuation or recurrence of material injury to a U.S. industry; the Court of International Trade affirmed. Commerce published a notice that it was revoking those duty orders and discontinuing unfinished administrative reviews. In 2013, the Federal Circuit reversed. The Trade Court reinstated the ITC’s affirmative material injury determination. Commerce e-mailed counsel for all parties that had previously requested administrative review, stating only that it was“sending out a quantity-and-value-questionnaire. Commerce published notice that it was resuming the administrative reviews and noting the deadline for withdrawing requests for review. Counsel for BMW did not complete the questionnaire, withdraw from review, or otherwise respond. Finding that BMW “failed to cooperate,” Commerce employed an adverse inference in selecting a 126.44% rate (19 U.S.C. 1677e(b)) against BMW. The Federal Circuit vacated. Commerce did not set forth its reasoning in sufficient detail to allow review of whether the rate was unduly punitive. View "BMW of North America LLC v. United States" on Justia Law

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Ford successfully sued in the Court of International Trade, challenging U.S. Customs and Border Protection’s classification of its model year 2012 Transit Connect 6/7 vehicles under Harmonized Tariff Schedule of the United States (HTSUS) Subheading 8704.31.00, which covers “[m]otor vehicles for the transport of goods,” and bears a duty rate of 25% ad valorem. Ford argued that its subject merchandise is properly classified under HTSUS Subheading 8703.23.00, which bears a lower duty rate of 2.5% ad valorem. The Federal Circuit reversed. The lower court erred by refusing to consider intended use as part of its analysis. Use is relevant in construing “other motor vehicles principally designed for the transport of persons” in HTSUS 8703 because this language suggests that classification is necessarily intertwined with whether an imported vehicle is chiefly intended to be used to transport persons. On balance, the structural design features, auxiliary design features, and inherent use considerations establish that the subject merchandise is not classifiable under HTSUS Heading 8703. View "Ford Motor Co. v. United States" on Justia Law

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The Court of International Trade held that Sunpreme’s solar modules are covered by the scope of antidumping and countervailing duty orders on U.S. imports of certain solar cells from China and that the Department of Commerce could not instruct U.S. Customs and Border Protection to continue suspending liquidation of Sunpreme’s solar modules entered or withdrawn from warehouse for consumption before the scope inquiry was initiated. The Federal Circuit affirmed, rejecting Sunpreme’s arguments that the orders did not cover its solar modules because they do not contain crystalline silicon photovoltaic cells, do not have an additional semiconductor substrate (p/n junction), and are thin film products. Commerce cannot order the suspension of liquidation pre-scope inquiry for merchandise possibly subject to an unclear or ambiguous duty order; neither can Customs because allowing it to do so would permit Customs in the first instance to clarify or interpret the ambiguity in the duty order so as to place merchandise within its scope. Customs lacks authority to suspend liquidation under those narrow circumstances and Commerce cannot continue an ultra vires suspension of that kind. View "Sunpreme Inc. v. United States" on Justia Law

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Segway filed a complaint (19 U.S.C. 337) with the International Trade Commission based on infringement of six patents and two trademarks--stylized and non-stylized SEGWAY marks, which cover “motorized, self-propelled, wheeled personal mobility devices, namely, wheelchairs, scooters, utility carts, and chariots.” The complaint alleged that Swagway’s self-balancing hoverboard products, marketed under the names SWAGWAY and SWAGTRON infringed Segway’s marks. Swagway proposed a consent order stipulating that Swagway would not sell or import “SWAGWAY-branded personal transporter products ... all components thereof, packaging and manuals.” Segway opposed the proposal as addressing only a subset of the claims and products at issue. After a hearing, the ALJ found that the accused products did not infringe certain patents and that use of the SWAGWAY designation, but not the SWAGTRON designation, infringed the trademarks. The Commission determined not to review the ALJ’s denial of Swagway’s consent order motion. The Federal Circuit upheld that determination and the trademark infringement determination based on the evidence supporting factors other than likelihood of confusion, including the degree of similarity between the two marks in appearance, the pronunciation of the words, and the strength of the SEGWAY marks. View "Swagway, LLC v. International Trade Commission" on Justia Law