Jill Greenfield
86 Geo. Wash. L. Rev. 1079
With the rise of 3D printing and the digitization of things, consumers are now able to replicate patented goods in their own homes using design files that are both widely available and easily shared. Society is on the brink of a new digital revolution, and patent holders are about to encounter the same challenge that copyright holders faced following the digitization of music: rampant infringement. This intellectual property theft will lead to losses on the order of billions of dollars per year. The United States is ill prepared to combat this new era of patent infringement because, in a 2015 decision, the U.S. Court of Appeals for the Federal Circuit stripped a powerful forum, the International Trade Commission (“ITC”), of its jurisdiction over electronic transmissions of digital data. This leaves patent holders unable to use the ITC to prevent the importation of infringing digital data or data that can later be used to 3D print
patented inventions.
This Note considers the ITC as a forum for protecting U.S. intellectual property rights and examines ClearCorrect Operating, LLC v. International Trade Commission, the Federal Circuit decision that narrowed the scope of ITC jurisdiction. It considers what theories patent holders can use to hold importers of 3D printing files liable and argues that, because the ITC can reach infringers that district courts cannot, it is critical to return jurisdiction over electronic transmissions to the ITC. This Note proposes a two-part solution to resolve the inability of patent holders to enforce an ITC order excluding digital data from the United States. It first advocates that Congress return jurisdiction over digital data to the ITC and then suggests a way to enforce such an order that protects patent holders without implicating concerns about censorship and internet freedom.
