Aug. 13, 2015 – Federal judges turned to an article by University of Houston Law Center Professor Sapna Kumar while questioning attorneys during oral arguments Tuesday in a case involving patents in the digital age.
Chief Judge Sharon Prost of the U.S. Court of Appeals for the Federal Circuit in Washington, D.C., and Judge Kathleen M. O'Malley discussed Kumar’s article “Regulating Digital Trade” during a hearing in the case of ClearCorrect Operating, LLC v. USITC decision.
Kumar’s article, soon to be published in the University of Florida Law Review, argues that the International Trade Commission’s jurisdiction is limited to imported tangible personal property, and does not include abstract information.
The judges noted that Kumar found an error in the ITC’s opinion in which it quoted legislative history supporting extension of its powers to regulate digital transmissions. Prost called out the ITC for omitting limiting language from the quote without using an ellipsis to indicate the deletion, as Kumar had pointed out.
The ITC falsely claimed that a Senate report had stated that the Tariff Act “provision relating to unfair methods of competition is broad enough to prevent every type and form of unfair practice.” The actual quotation instead included the limiting phrase “in the importation of goods,” which is important because “goods” is generally understood to be limited to tangible property.
In its opinion, the ITC claimed it has jurisdiction over digital information that enters the U.S.
The case concerns patented plastic dental aligners for which ClearCorrect scanned the patients’ physical data in the U.S. and transmitted it to a company in Pakistan which created a digital model of the patients’ teeth and a corrective plan. The data was then uploaded to a Houston server where a 3D printer was used to create the orthodontic retainer.
Kumar joined the Law Center faculty in 2009. She has written several articles regarding the ITC and teaches in the areas of Patent Law, Administrative Law, and Property.