Tessera Defends ITC Exclusion Order at CAFC

Scott Daniels | June 10, 2010

Last week I described the interesting issue raised in Tessera’s ITC case involving semiconductor packaging: whether the public interest is harmed if the ITC issues an exclusion order based on infringement of a patent that has been rejected as invalid in a copending but unfinished reexamination proceeding.

The CAFC heard oral argument on the case yesterday, and unfortunately, neither the lawyers nor the judges shared my enthusiasm for the issue.  Rather, they focused exclusively on the infringement and indefiniteness issues.

Based on the tone of the judges’ questioning, I expect that the CAFC will reverse the ITC’s infringement determination for at least one reason, and therefore never reach the exclusion order issue.  And even if the panel did consider the issue, the judges would likely dismiss it as premature, in view of Judge Michel’s recent comment in Dow Jones & Co. v. Ablaise Ltd., because the reexamination proceeding has not been completed.

The potential for inconsistent decisions from the PTO, the courts and the ITC remains.  Only the future will tell whether the solution comes from the CAFC or from Congress.

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