Dbn Holding, Inc. v. Itc ( 2022 )

Case: 20-2342 Document: 39 Page: 1 Filed: 03/01/2022
United States Court of Appeals
for the Federal Circuit
______________________
DBN HOLDING, INC., BDN LLC,
Appellants
v.
INTERNATIONAL TRADE COMMISSION,
Appellee
______________________
2020-2342
______________________
Appeal from the United States International Trade
Commission in Investigation No. 337-TA-854.
______________________
Decided: March 1, 2022
______________________
STACY O. STITHAM, Brann & Isaacson, Lewiston, ME,
argued for appellants. Also represented by PETER J.
BRANN, DAVID SWETNAM-BURLAND.
WAYNE W. HERRINGTON, Office of the General Counsel,
International Trade Commission, Washington, DC, argued
for appellee. Also represented by DOMINIC L. BIANCHI,
CLINT A. GERDINE.
______________________
Before MOORE, Chief Judge, NEWMAN and REYNA, Circuit
Judges.
Case: 20-2342 Document: 39 Page: 2 Filed: 03/01/2022
2 DBN HOLDING, INC. v. ITC
REYNA, Circuit Judge.
DBN Holding, Inc. and BDN LLC appeal the U.S. In-
ternational Trade Commission’s remand determination
denying their petition to rescind or modify the civil penalty
imposed by the International Trade Commission for viola-
tions of a consent order. In a prior appeal, we instructed
the International Trade Commission to assess on remand
“whether to modify or rescind the civil penalty pursuant to
19 C.F.R. § 210.76 based on the final judgment of invalid-
ity” of the patent asserted in the underlying Section 337 1
investigation. 2 DBN Holding, Inc. v. Int’l Trade Comm’n,
755 F. App’x 993, 998 (Fed. Cir. 2018) (non-precedential).
On remand, the International Trade Commission deter-
mined that the civil penalty did not require modification or
rescission and therefore denied the petition. Because we
discern no abuse of discretion in the International Trade
Commission’s determination, we affirm.
BACKGROUND 3
This is the fourth appeal relating to this case that has
come to our court. See DeLorme Publ’g Co. v. BriarTek IP,
Inc., 622 F. App’x 912, 913 (Fed. Cir. 2015) (non-preceden-
tial) (“DBN I”); DeLorme Publ’g Co. v. Int’l Trade Comm’n,
805 F.3d 1328, 1330 (Fed. Cir. 2015) (“DBN II”); DBN
Holding, Inc. v. Int’l Trade Comm’n, 755 F. App’x 993, 994
(Fed. Cir. 2018) (non-precedential) (“DBN III”). Given this
lineage, we do not repeat the extensive background infor-
mation from those prior appeals, and we focus on those
1 19 U.S.C. § 1337.
2 Inv. No. 337-TA-854.
3 We refer to the appellants and their predecessors
in interest collectively as “DBN.” Appellant DBN Holding,
Inc. was formerly known as DeLorme Publishing Com-
pany, Inc. Appellant BDN LLC was formerly known as De-
Lorme InReach LLC.
Case: 20-2342 Document: 39 Page: 3 Filed: 03/01/2022
DBN HOLDING, INC. v. ITC 3
background and procedural details necessary for us to re-
view and resolve this appeal.
On November 12, 2015, we issued both DBN I and
DBN II. In DBN I, we affirmed the Eastern District of Vir-
ginia’s grant of summary judgment invalidating the same
patent claims that patent owner BriarTek IP, Inc. (“Bri-
arTek”) had asserted against DBN in a parallel investiga-
tion before the U.S. International Trade Commission
(“ITC”) under Section 337. See DBN I, 622 F. App’x at 913
(affirming invalidation of claims 1, 2, 5–12, 17, 34, and 35
of U.S. Patent No. 7,991,380); see also DBN II, 805 F.3d
at 1333 (listing claims 1, 2, 5, 10–12, and 34 as asserted
claims in the ITC investigation). In DBN II, we held that
(1) the ITC did not abuse its discretion in imposing on DBN
a $6,242,500 civil penalty for violating the consent order 4
4 The consent order stated as follows:
1. Upon entry of the proposed Consent Order,
[DBN] shall not import into the United States, sell
for importation into the United States, or sell or of-
fer for sale within the United States after importa-
tion any two-way global satellite communication
devices, system, and components thereof, that in-
fringe claims 1, 2, 5, 10–12, and 34 of the ’380 Pa-
tent after April 1, 2013, until the expiration,
invalidation, and/or unenforceability of the ’380 Pa-
tent.
2. [DBN] shall be precluded from seeking judicial
review or otherwise challenging or contesting the
validity of this Consent Order. . . .
4. The Consent Order shall not apply with respect
to any claim of any intellectual property right that
has expired or been found or adjudicated invalid or
unenforceable by the [ITC] or a court or agency of
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4 DBN HOLDING, INC. v. ITC
DBN signed in order to terminate the ITC investigation,
and that (2) our affirmance in DBN I of the district court’s
invalidation of the asserted claims did not negate—under
the consent order’s unambiguous terms—DBN’s pre-inval-
idation violations of the consent order. 805 F.3d
at 1333–34.
On December 22, 2015, DBN filed a petition before the
ITC under 19 C.F.R. § 210.76 seeking to rescind or modify
the civil penalty order issued by the ITC against DBN for
violating the consent order. J.A. 721–31. DBN argued in
its petition that the civil penalty order should be set aside
or modified because the patent claims asserted in the Sec-
tion 337 investigation were found by a district court to be
invalid in a decision subsequently affirmed by this court.
DBN asserted that the invalidation of the claims effected
by those two decisions constituted a “changed condition[] of
fact or law” warranting the civil penalty’s modification or
rescission under § 210.76. J.A. 725.
The ITC denied DBN’s petition on res judicata grounds,
interpreting DBN II as deciding that our contemporaneous
invalidity affirmance in DBN I had no effect on the civil
penalty order. J.A. 897–900. DBN again appealed to this
court, arguing that the ITC erred in relying on res judicata
grounds to deny DBN’s petition. DBN III, 755 F. App’x
at 996. We agreed, explaining that DBN II did not divest
the ITC of the authority to rescind or modify the civil pen-
alty in light of the invalidity judgment. Id. at 997–98 (“Our
holding in [DBN II] that the invalidation of the [asserted]
claims had no retroactive effect on the [c]onsent [o]rder
does not bar the [ITC] from determining whether to modify
or rescind the civil penalty under 19 C.F.R. §§ 210.76(a)(1)
competent jurisdiction, provided that such finding
or judgment has become final and non-reviewable.
J.A. 168.
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DBN HOLDING, INC. v. ITC 5
or (a)(2).” (footnote omitted)). We therefore remanded for
the ITC to decide, in the first instance, whether to rescind
or modify the civil penalty in light of our decision that the
relevant patent claims are invalid. Id. at 998.
On remand, the parties submitted briefing, and the
ITC again denied DBN’s petition to rescind or modify the
order. Certain Two-Way Glob. Satellite Commc’n Devices,
Sys. & Components Thereof, Inv. No. 337-TA-854 (Re-
mand), Comm’n Op., 2020 WL 5941990, at *2 (Aug. 18,
2020) (“Satellites”) (J.A. 10–51). The ITC pointed out that
19 C.F.R. § 210.76(a)(1) contemplates modifying or re-
scinding “remedial orders, i.e., exclusion orders, cease and
desist orders, and consent orders,” but “does not refer to
civil penalty orders.” Id. at *16. The ITC rejected DBN’s
argument that the ITC had rescinded civil penalty orders
in similar cases identified by DBN. Id. at *18–23. Accord-
ing to the ITC, DBN identified three categories of cases to
support its argument: (1) the Magnets case 5 in which the
ITC rescinded a penalty order that had been previously af-
firmed by this court; (2) the ATMs case 6 in which the ITC
rescinded remedial orders in light of this court’s decisions
invalidating the asserted patent claims; and (3) other
cases 7 in which the ITC rescinded remedial orders in light
5 Certain Neodymium-Iron-Boron Magnets, Magnet
Alloys, and Articles Containing Same, Inv. No. 337-TA-372,
64 Fed. Reg. 56,515–16 (Oct. 20, 1999) (“Magnets”).
6 Certain Automated Teller Machines, ATM Mod-
ules, Components Thereof, and Products Containing the
Same, Inv. No. 337-TA-989, Comm’n Notice (Mar. 11,
2019).
7 E.g., Certain Composite Wear Components and
Products Containing Same, Inv. No. 337-TA-644 (Feb. 10,
2011); Certain Steel Rod Treating Apparatus and Compo-
nents Thereof, Inv. No. 337-TA-97 (Jan. 15, 1982); and
Case: 20-2342 Document: 39 Page: 6 Filed: 03/01/2022
6 DBN HOLDING, INC. v. ITC
of a district court’s invalidation of the asserted patent
claims. Id. The ITC concluded that none of those cases
supported DBN’s petition. Id. at *18.
The ITC then reassessed the relevant factors for deter-
mining civil penalties and concluded that the invalidation
of the asserted claims did not change its original assess-
ment of those factors when imposing the penalty. The fac-
tors, known as the EPROMs factors, include:
(1) the good or bad faith of the respondent, (2) the
injury to complainant, (3) respondent’s ability to
pay, (4) the extent to which respondent has bene-
fited from its violations, (5) the need to vindicate
the authority of the Commission, and (6) the public
interest.
Id. at *17 (first citing San Huan New Materials High Tech,
Inc. v. Int’l Trade Comm’n, 161 F.3d 1347, 1362 (Fed. Cir.
1998); then citing Certain Erasable Programmable Read
Only Memories, Inv. No. 337-TA-276 (Enforcement),
Comm’n Op. (July 19, 1991) (“EPROMs”)); see also id.at *23–27.
The first factor, good faith, involves considering certain
other factors called the Ninestar factors, namely whether
the respondent
(1) had a reasonable basis to believe that the vio-
lating product was not within the scope of the Com-
mission’s order, (2) requested an advisory opinion
or clarification from the Commission, (3) provided
any opinion of counsel indicating that it obtained
legal advice before engaging in the acts underlying
the charge of violation, (4) decided which products
were subject to the order based on the decisions of
Certain Large Video Matrix Display Systems and Compo-
nents Thereof, Inv. No. 337-TA-75 (Aug. 10, 1980).
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DBN HOLDING, INC. v. ITC 7
management and technical personnel, without le-
gal advice, and (5) satisfied its reporting require-
ments under the relevant Commission order.
Id. at *23 (quoting Certain Ink Cartridges and Components
Thereof, Inv. No. 337-TA-565, Comm’n Op., 2010 WL
5642166, at *14 (Sept. 24, 2009), aff’d sub nom. Ninestar
Tech. Co. v. Int’l Trade Comm’n, 667 F.3d 1373, 1385 (Fed.
Cir. 2012)). The ITC rejected DBN’s argument that it acted
in good faith in violating the consent order because it held
a reasonable belief that the asserted claims were invalid.
Id. at *24. The ITC observed that DBN did not address the
Ninestar factors and that, in any event, a good faith belief
of invalidity was not among those factors. Id. Further, the
ITC reasoned, considering invalidity would be redundant
because “the possibility of an invalidity judgment is ex-
pressly contemplated by the terms of the [c]onsent [o]rder
and the effect of such a judgment is expressly provided for
by the terms of the [c]onsent [o]rder.” Id. at *25.
With respect to EPROMs factors two through five, the
ITC explained that DBN presented no basis for finding that
the invalidation of the asserted claims affected the civil
penalty amount or the ability of DBN to pay the amount.
Id. at *25–26. Turning to “public interest,” the sixth
EPROMs factor, the ITC determined that DBN had again
not presented any basis for modifying or rescinding the
civil penalty on public interest grounds. Id. at *26–27. It
rejected DBN’s argument that “the civil penalty is no
longer in the public interest given the EDVA invalidity
judgment.” Id. at *26. The ITC again reasoned that DBN’s
position overlooks the fact that the consent order expressly
accounts for the subsequent invalidation of the patent
claims. Id. The ITC further explained that “it is important
that violators like [DBN] and potential future violators of
consent orders clearly understand that the Commission ex-
pects such orders to be complied with and that there will
be consequences if they are not.” Id. The ITC concluded,
for all the foregoing reasons, that reassessment of the
Case: 20-2342 Document: 39 Page: 8 Filed: 03/01/2022
8 DBN HOLDING, INC. v. ITC
EPROMs factors did not warrant rescinding or modifying
the civil penalty in light of the asserted claims’ invalida-
tion. Id. at *27.
Finally, the ITC rejected DBN’s public policy argument
that “[b]ecause there can be no infringement of an invalid
patent claim, there is no longer an unfair competitive act
for the Commission to remedy” and that “[a]t this juncture,
there is no statutory purpose served by the [c]ivil [p]enalty
[o]rder.” Id. (citation omitted). The ITC explained that this
argument ignores the language of the consent order con-
templating the invalidation of the asserted claims. Id.
DBN appealed. We have jurisdiction under 28 U.S.C.
§ 1295(a)(6).
STANDARD OF REVIEW
We review the ITC’s denial of a petition to rescind or
modify an order pursuant to 19 C.F.R. § 210.76 for an
abuse of discretion. See 5 U.S.C. § 706(2)(A). “An abuse of
discretion occurs where the decision is based on an errone-
ous interpretation of the law, on factual findings that are
not supported by substantial evidence, or represents an un-
reasonable judgment in weighing relevant factors.” Star
Fruits S.N.C. v. United States, 393 F.3d 1277, 1281 (Fed.
Cir. 2005) (citing Arnold P’ship v. Dudas, 362 F.3d 1338,
1340 (Fed. Cir. 2004)).
DISCUSSION
I
DBN argues that this court’s precedent and ITC prac-
tice support its petition to modify or rescind the ITC’s civil
penalty order, and accordingly that the ITC abused its dis-
cretion by denying the petition. See Appellants’ Br. 13–17,
20–21. First, DBN contends that the ITC erred in holding
that the Magnets case does not compel modification or re-
scission of the civil penalty order. See Appellants’
Br. 14–15, 20–28. DBN acknowledges that Magnets
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DBN HOLDING, INC. v. ITC 9
involved a retroactive license agreement between the par-
ties that negated prior acts of infringement. See, e.g., id.
at 23 (“In the case of the Magnets respondents, it was a
retroactive license that rendered their prior actions non-
infringing.”). DBN nevertheless contends that “there can
be no material difference” between that case and this one
involving the “final invalidation of patent claims that ne-
gates prior acts of infringement.” Id. at 15. We disagree
that Magnets governs this case.
In Magnets, the consent order prohibited importation
of the infringing articles, “except under consent or license.”
Certain Neodymium-Iron-Boron Magnets, Magnet Alloys,
and Articles Containing Same, Inv. No. 337-TA-372,
Comm’n Notice, 1995 WL 945772, at *2 (Oct. 10, 1995).
The ITC later determined that respondents had violated
the consent order and assessed a civil penalty. Magnets,
64 Fed. Reg. at 56,515. The parties reached a settlement
and filed a joint motion to vacate the penalty on the
grounds that they had agreed upon a retroactive license.
See id.; see also Appellants’ Br. 23. The ITC granted the
parties’ joint motion given that the retroactive settlement
authorized the action that was the subject of the civil pen-
alty. Unlike in Magnets, the parties here did not reach any
such retroactive settlement, Appellee’s Br. 31, or any other
form of agreement or settlement addressing the consent or-
der violations. DBN does not explain how its violations of
the consent order were authorized. DBN points out that it
is now impossible to seek a retroactive license because the
asserted patent claims have been invalidated. Appellants’
Br. 26. That point does not help DBN’s position because
absent a retroactive settlement, we look to the consent or-
der for such authorizations. The fact remains that, unlike
in Magnets, the actions leading to DBN’s violation of the
consent order were never authorized by the ITC or the com-
plainant in the underlying Section 337 investigation.
DBN’s arguments ignore the instruction we provided
in DBN II that “[c]onsent decrees and orders have
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10 DBN HOLDING, INC. v. ITC
attributes both of contracts and of judicial decrees.”
805 F.3d at 1333 (quoting United States v. ITT Cont’l Bak-
ing Co., 420 U.S. 223, 237 n.10 (1975)). By entering the
consent order, DBN agreed to discontinue any violation of
Section 337. The ITC, in turn, terminated the investiga-
tion as required. From a contractual perspective, the
breach of this promise provides the ITC a distinct ground
for imposing a civil penalty. DBN agreed to the terms of
the consent order, and those terms “unambiguously indi-
cate[] that the invalidation trigger—like the expiration and
unenforceability triggers—applies only prospectively.” Id.
at 1335. Had the consent order been written in retrospec-
tive terms, DBN might have a stronger argument that the
invalidation of the asserted claims renders the consent or-
der null and void, or that modification is required. But un-
der the clear terms of the consent order, DBN remained
potentially liable for any violations up to the time of inval-
idation. Id.
DBN points to cases involving modification or rescis-
sion of remedial orders as a basis to modify or rescind the
civil penalty order in this case. See Appellants’ Br. 28–34.
DBN appears to concede the ITC’s point that remedial or-
ders are different from civil penalty orders in that the for-
mer are forward-looking, i.e., they prohibit future conduct,
while the latter are backward-looking, i.e., they penalize
past conduct. Id. at 33–34 (“Maybe so.”); see also Satellites,
2020 WL 5941990, at *16. DBN, however, argues that “for
all relevant purposes,” remedial orders and the ITC’s civil
penalty order here are “the same” because they are all
predicated on “infringing conduct [that can] no longer
be . . . considered” in light of the asserted claims’ invalida-
tion. Appellants’ Br. 33–34.
We are not persuaded that the ITC’s past practice in-
volving the rescission or modification of a remedial order
supports DBN’s position that the civil penalty order must
be rescinded or modified. As we explained in DBN III, the
ITC has relied on § 210.76 as a basis to rescind or modify a
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DBN HOLDING, INC. v. ITC 11
civil penalty order on rare occasion, even though that pro-
vision, on its face, only contemplates rescinding or modify-
ing remedial orders. 755 F. App’x at 997; see also 19 C.F.R.
§ 210.76 (allowing persons to submit petitions to rescind or
modify “an exclusion order, cease and desist order, or con-
sent order”); Magnets, 64 Fed. Reg. at 56,515 (vacating a
civil penalty “under the authority of . . . section 210.76”). It
is unclear whether and under what circumstances § 210.76
supports rescission or modification of a civil penalty order,
but we need not decide that question today. What is evi-
dent in § 210.76 is that it commits to the ITC’s discretion
the decision to rescind or modify previous orders. See
19 C.F.R. § 210.76 (permitting persons to file petitions for
rescission or modification; stating the ITC “may also on its
own initiative consider such action”; and stating that “[i]f
the Commission makes such a determination, it shall notify
the Secretary of the Treasury and U.S. Custom and Border
Protection” (emphasis added)).
For all the above reasons, we are not persuaded that
the case law identified by DBN requires a conclusion that
the ITC determination denying DBN’s petition was an
abuse of discretion.
II
DBN also contends that the ITC erred in reassessing
the EPROMs factors and concluding that those factors do
not require rescission or modification of the civil penalty
order. See Appellants’ Br. 34–46. Addressing the first fac-
tor, good or bad faith, DBN III, 755 F. App’x at 997 n.2,
DBN contends that it violated the consent order in good
faith because it believed, when committing the violation,
that the asserted claims were invalid, Appellants’ Br.
at 36–40. DBN argues that it was operating under this
court’s rule in Commil USA, LLC v. Cisco Systems, Inc.—
which was subsequently vacated by the Supreme Court—
that “evidence of an accused inducer’s good-faith belief of
invalidity may negate the requisite intent for induced
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12 DBN HOLDING, INC. v. ITC
infringement.” 720 F.3d 1361, 1368 (Fed. Cir. 2013), va-
cated, 575 U.S. 632, 647 (2015). DBN thus equates, with-
out a reasonable basis or legal authority, the intent
required for induced infringement with the good faith fac-
tors under Ninestar. But it does not follow that lacking the
requisite intent for induced infringement means that a
party necessarily acts in good faith when violating an ITC
consent order. These two tests involve separate legal anal-
yses and determinations. For example, DBN points to
nothing in Commil that modified the Ninestar factors, nor
does it cite any authority to support its proposition that a
lack of intent for induced infringement purposes is relevant
to the Ninestar factors inquiry. DBN thus does not persua-
sively show that the ITC abused its discretion in its reas-
sessment of the good faith EPROMs factor.
The second EPROMs factor is the injury to the public.
DBN III, 755 F. App’x at 997 n.2. The ITC found no harm
to BriarTek as a result of DBN’s consent order violation.
Satellites, 2020 WL 5941990, at *25. Neither party chal-
lenges that finding on appeal. Appellants’ Br. 40; Appel-
lee’s Br. 40.
Regarding the third EPROMs factor—DBN’s ability to
pay the penalty, DBN III, 755 F. App’x at 997 n.2—DBN
contends that “[t]he fact that a party could pay an unlawful
fine is not itself a reason to leave the fine in place,” Appel-
lants’ Br. 40. The ITC responds that it previously found
that DBN was able to pay the penalty assessed, and DBN
presented no basis on remand to conclude that the asserted
claims’ invalidation had any effect on that ability. Appel-
lee’s Br. 40–41. We perceive no reason for finding that the
ITC’s reassessment of this factor warrants rescission or
modification of the penalty.
Turning to EPROMs factor four, the extent to which
DBN has benefited from its violations, DBN III,
755 F. App’x at 997 n.2, DBN does not challenge the ITC’s
finding that DBN financially benefited from its sales that
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DBN HOLDING, INC. v. ITC 13
were in violation of the consent order, Appellants’
Br. 40–43. Instead, DBN argues that it cannot be deemed
to have benefited from its violations (which were patent in-
fringements) because the subsequent invalidation of the
asserted claims of the ’380 patent negated all such infringe-
ment. Id. DBN again overlooks the nature of consent or-
ders, which have attributes of both contracts and judicial
decrees. See DBN II, 805 F.3d at 1333. Here, DBN prom-
ised in the consent order not to commit unfair trade acts of
infringement up until the point of patent invalidation, but
DBN violated the consent order by engaging in infringing
acts before that point. Even accepting that invalidation of
the claims may negate DBN’s infringement, we are not per-
suaded that such invalidation negates its consent order vi-
olations. We discern no abuse of discretion in the ITC’s
determination that reassessment of the fourth EPROMs
factor does not require rescission or modification.
Regarding the fifth EPROMs factor, the need to vindi-
cate the authority of the ITC, DBN III, 755 F. App’x
at 997 n.2, DBN argues that “[t]he [ITC] cannot predicate
a massive civil penalty solely to vindicate its own power,”
Appellants’ Br. 43. Even if that were true, we are not per-
suaded that the ITC took such a course of action. Instead,
the ITC reassessed all the EPROMs factors and again de-
termined that those factors, taken together, support the
civil penalty. See Satellites, 2020 WL 5941990, at *23–27.
Because consent orders would be useless if their violation
had no consequence, the ITC’s enforcement of the consent
order via a civil penalty was a reasonable exercise of its
enforcement authority under Section 337 and ITC regula-
tions, especially in light of the record evidence of DBN’s bad
faith in violating the consent orders. See DBN II, 805 F.3d
at 1333 (“[DBN] has not shown, for example, that there
was clear error in the Commission’s findings regarding
[DBN]’s bad faith . . . .”). We see no reason to disturb the
ITC’s reassessment of the fifth EPROMs factor.
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14 DBN HOLDING, INC. v. ITC
As for the remaining EPROMs factor, the public inter-
est, DBN III, 755 F. App’x at 997 n.2, DBN contends that
“[t]he public has no interest in penalizing a company for
engaging in conduct that in no way harmed the public,” Ap-
pellants’ Br. 44. We agree with the ITC that deterring vi-
olation of its orders by imposing civil penalties for violative
conduct is in the public interest. We discern no error in the
ITC’s reassessment of the public interest factor.
CONCLUSION
On remand, we instructed the ITC to assess in the first
instance the law and factors relevant to the civil penalty
order issued against DBN for violating the consent order
that prohibited unfair trade acts of infringement involving
claims that were deemed invalid subsequent to the entry of
the consent order. We conclude that the ITC’s remand de-
termination is based on a correct interpretation of law and
findings that are reasonable and supported by substantial
evidence. We hold that the ITC did not abuse its discretion
in declining to rescind or modify its civil penalty order in
view of the asserted claims’ invalidation. We have consid-
ered DBN’s remaining arguments and find them unpersua-
sive. For the reasons explained above, we affirm.
AFFIRMED
COSTS
No costs.