Federal Circuit Sides With Align and Reverses the ITC's Termination of Align's Contract Case Against ClearCorrect's Former OrthoClear Employees for Violation of 2006 Consent Decree
First, the Federal Circuit agreed with Align that as a procedural matter, the ITC should never have reviewed (and reversed) Administrative Law Judge
Second, because the Commission could on remand simply waive the regulation, reach the same result, and bounce the case back to the Federal Circuit, the court decided also to reach the substantive issue regarding the interpretation of the consent order. The Federal Circuit rejected the Commission's claim that the ITC had a historical practice of only permitting cease-and-desist orders prohibiting electronic transmissions if the orders mentioned such transmissions explicitly. The Court ruled that the language used by the parties in the 2006 Consent Order was adequate to prohibit importation by electronic transmission, and remanded the case to the ITC to determine at trial whether the former OrthoClear (now ClearCorrect) employees violated the Consent Order by admittingly transmitting digital dental data to ClearCorrect (a process the ITC has already found to infringe multiple Align patents). The Court did not reach the question of whether section 337 gives the ITC jurisdiction over electronic articles (an issue Align won with both the ALJ and the ITC and now the subject of a separate ClearCorrect appeal).
The case will now be remanded back to the ITC, who will presumably assign a new ALJ to handle the case going forward (ALJ Rogers has since retired). Align expects the new ALJ to set a status conference to discuss the schedule for further handling of the case.
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