Articles Posted in International Trade

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One-E-Way filed a complaint with the International Trade Commission, alleging infringement of its patents, which disclose a wireless digital audio system designed to let people use wireless headphones privately, without interference, even when multiple people are using wireless headphones in the same space. The specification explains that previous wireless digital audio systems did not provide “private listening without interference where multiple users occupying the same space are operating wireless transmission devices.” The Commission found the claim term “virtually free from interference” indefinite and invalidated the asserted claims of One-E-Way’s patents. The Federal Circuit reversed, finding that the term “virtually free from interference,” as properly interpreted in light of the specification and prosecution history, would inform a person of ordinary skill in the art about the scope of the invention with reasonable certainty. View "One-E-Way, Inc. v. International Trade Commission" on Justia Law

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Mid Continent Nail requested that the Department of Commerce initiate a third administrative review of its anti-dumping duty order covering certain steel nails from China. Mid Continent did not serve the request directly on Suntec, a Chinese exporter and producer named in the antidumping order and in the request. When Commerce actually initiated the review about a month after receiving the request, it published a notice in the Federal Register, as provided in 19 U.S.C. 1675(a)(1). Despite that publication, however, Suntec did not participate in the review. Because of a lapse in its relationship with the counsel who had been its representative for years in the steel-nail proceedings, Suntec remained unaware of the review until Commerce announced the final results. The Court of International Trade declined to set aside the results of the review as applied to Suntec. The Federal Circuit affirmed, holding that Suntec had failed to demonstrate that it was substantially prejudiced by the service error as to the request for the review because the Federal Register notice constituted notice to Suntec as a matter of law and fully enabled Suntec to participate in the review. View "Suntec Industries Co., Ltd. v. United States" on Justia Law

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In 2013, domestic producers of oil country tubular goods (OCTG) filed a petition with the Department Commerce alleging that the Government of Turkey (GOT) was providing countervailable subsidies to domestic exporters. Commerce instituted a countervailing duty investigation and selected Borusan and GOT as mandatory respondents. Because hot-rolled steel (HRS) is an input used in the manufacture of OCTG, Commerce then issued each a questionnaire relating to the provision of HRS in Turkey. Borusan did not report input purchases for two of its steel mills, explaining the difficulties in producing the information and asserting that Commerce had sufficient information. Commerce determined that it was appropriate to apply adverse facts available (AFA) to Borusan. The Court of International Trade and the Federal Circuit upheld the determination. Commerce requested information from Borusan, which Borusan did not provide and never claimed that it was unable to provide; there was no evidence that GOT had access to or maintained the HRS data that it claimed that it was unable to provide. View "Maverick Tube Corp. v. United States" on Justia Law

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AHAC, a surety, secured importers’ importation of preserved mushrooms and crawfish tail meat from China by issuing single transaction and continuous entry bonds in 2001 and 2002. The bonds obligated the importers and AHAC to pay, up to the face amounts of the bonds, “any duty, tax or charge and compliance with law or regulations” resulting from covered activities. Customs liquidated entries secured by the bonds and assessed antidumping duties, which the importers failed to pay. Customs started charging statutory post-liquidation interest on the unpaid duties, 19 U.S.C. 1505(d). From 2003-2009, Customs issued multiple demands notifying AHAC of its intent to seek section 1505(d) interest. Customs denied AHAC’s protest. AHAC did not challenge that denial under 28 U.S.C. 1581(a). The government commenced Trade Court suits. The Federal Circuit affirmed the Trade Court’s order that AHAC pay section 1505(d) interest up to the face amounts of the bonds. Section 1505(d) interest involves “charges or exactions of whatever character” under 19 U.S.C. 1514(a)(3); the statute does not exempt charges arising after liquidation. The bonds do not distinguish between pre- and post-liquidation interest. Because AHAC failed to contest its denied protest, AHAC was precluded from asserting defenses regarding its liability under section 1505(d). View "United States v. American Home Assurance Co." on Justia Law

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The 320 patent describes single-brew coffee machines, such as the Keurig® system, and purports to address the incompatibility between pod-based and cartridge-based systems. The invention “more particularly relates to an adaptor assembly configured to effect operative compatibility between a single serve beverage brewer and beverage pods.” None of the claims as issued included any reference to a “pod,” “pod adaptor assembly,” or “brewing chamber for a beverage pod.” Instead, the relevant claims call for “a container . . . adapted to hold brewing material.” In 2014, Rivera filed a complaint with the International Trade Commission, alleging that Solofill was importing beverage capsules that infringed the patent, in violation of 19 U.S.C. 1337. Solofill’s K2 and K3 beverage capsules are made to fit into a Keurig® brewer, and include an integrated mesh filter surrounding a space designed to accept loose coffee grounds. An ALJ found no violation of section 337, The Commission affirmed, finding asserted claims invalid for lack of written description, and others invalid as anticipated. The Federal Circuit affirmed, agreeing that the claims were invalid for lack of written description. View "Rivera v. International Trade Commission" on Justia Law

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Trade Court abused its discretion in waiving the exhaustion requirement in appeal of antidumping order. The Department Commerce initiated an investigation into whether oil country tubular goods (OCTGs) from Saudi Arabia and other countries were sold for less than fair value in the U.S. Commerce selected Duferco as the mandatory respondent; preliminarily found dumping; determined to treat Duferco and three affiliates as a single entity; and determined that Duferco is affiliated with JESCO, the producer of the OCTGs. Duferco owns 10 percent of JESCO. JESCO participated as a voluntary respondent. Commerce published its final determination, concluding that Saudi OCTGs were being dumped and recalculating the duty margin at 2.69 percent. Following the final determination, JESCO identified an error in Commerce’s calculation of Constructed Value (CV) profit. Correcting this error lowered JESCO’s CV profit, reducing JESCO's dumping margin to 1.37 percent. Commerce issued an amended negative final determination, imposing no duties. U.S. companies appealed, arguing that JESCO’s sales to a Colombian distributor were intra-company transfers within the Duferco entity, not an appropriate basis to construct CV profit--an argument not made during the investigation. The Trade Court affirmed Commerce’s determination, declining to apply the exhaustion requirement because the parties did not know that Commerce was considering using the Colombian sales until the final determination. The Federal Circuit vacated. Commerce need not expressly notify interested parties when it intends to change its methodology between its preliminary and final determinations, given the inclusion of the relevant data in the record and the advancement of arguments related to that data. The parties had an opportunity to raise their single entity objection before Commerce. View "Boomerang Tube LLC v. United States" on Justia Law

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In 2012, Meridian asked the U.S. Department of Commerce to issue a scope ruling that certain aluminum trim kit packages did not fall within the scope of the antidumping and countervailing duty orders (19 U.S.C. 1671(a)(1)) on aluminum extrusions from the People’s Republic of China. Commerce found the trim kits subject to the Orders’ scope. Five opinions and three remands later, the Trade Court sustained Commerce’s third remand determination, under protest, that the trim kits do not fall within the Orders’ scope. The Federal Circuit reversed. Commerce did not err in its interpretation of the finished goods kit exclusion in the initial scope ruling. The exclusion states that, to fall outside the scope of the Orders, a finished goods kit must contain more than only aluminum extrusion parts necessary for final assembly. Substantial evidence supports Commerce’s finding that the trim kits meet the exception to the finished goods kit exclusion. View "Meridian Products, LLC v. United States" on Justia Law

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Organik and Dow both manufacture opaque polymers, hollow spheres used as additives to increase paint’s opacity. Dow has maintained its worldwide market-leader position through a combination of patent and trade-secret protections. Dow filed a complaint with the International Trade Commission requesting an investigation into whether Organik’s opaque polymer products infringed four Dow patents. The Commission granted Dow’s request, and the parties began discovery. During the proceedings, Dow amended its complaint to add allegations of trade secret misappropriation when it discovered that Organik may have coordinated the production of its opaque polymers with the assistance of former Dow employees. As Dow attempted to obtain discovery relating to the activities of those employees, Dow discovered spoliation of evidence “on a staggering scale.” The Federal Circuit affirmed the Commission’s imposition of default judgment and entry of a limited exclusion order against Organik as sanctions for the spoliation of evidence. Organik’s “willful, bad faith misconduct” deprived Dow of its ability to pursue its trade secret misappropriation claim effectively. The record supports the limited exclusion order of 25 years with the opportunity for Organik to bypass that order at any time if it can show that it has developed its opaque polymers without using Dow’s misappropriated trade secrets. View "Organik Kimya v. International Trade Commission" on Justia Law

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In 2010, the Department of Commerce initiated an antidumping-duty investigation of multilayered wood flooring from China (19 U.S.C. 1673a(b)) and sent questionnaires to Chinese exporters and producers, selecting the three largest exporters as mandatory respondents. Commerce deems China to be a nonmarket economy and presumes that each Chinese exporter and producer is state-controlled, and covered by a single China-wide antidumping-duty rate, but a firm may rebut the presumption. Commerce determined that 74 firms established their independence from the Chinese government (not individually investigated, but not covered by the China-wide rate) and calculated a “separate rate.” Commerce did not individually investigate the appellants to determine firm-specific dumping margins. It assigned them a rate that, though not specified numerically, was declared to be more than de minimis, even though it found zero or de minimis dumping margins for all three of the Chinese firms that were individually investigated. The Trade Court affirmed. The Federal Circuit subsequently held that the “separate rate” method used in this case was a departure from the congressionally-approved “expected method” applicable when all of the individually investigated firms have a zero or de minimis rate, and that certain findings are necessary to justify such a departure. Under the “expected method,” appellants would be entitled to a de minimis rate. Because Commerce did not make the necessary findings, the Federal Circuit vacated. View "Changzhou Hawd Flooring Co. v. United States" on Justia Law

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Chengde is a Chinese producer of oil country tubular goods (OCTG), steel tubing products used in oil and gas drilling, and ATP is the importer of record during the relevant period. In 2011, the Department of Commerce initiated the first administrative review of the antidumping duty order directed to OCTG from China and selected Chengde as a mandatory respondent. Because China is considered a nonmarket economy country, Commerce selected Indonesia, a market economy country, as the primary surrogate country from which it would use surrogate values to ascertain Chengde’s factors of production. In the Final Results, Commerce assigned Chengde a dumping margin of 162.69%. The Trade Court and Federal Circuit affirmed, finding that Commerce’s antidumping duty calculations were supported by substantial evidence and otherwise in accordance with law. The court rejected challenges to Commerce’s decision to use a simple average of surrogate values for carbon steel billets and alloy steel billets for the untested OCTG; its denial of scrap byproduct offset; and its treatment of international freight as nonmarket economy transactions. View "American Tubular Products, LLC v. United States" on Justia Law