
United States Court of Appeals for the Federal Circuit


                             03-1426,-1489


                         VASTFAME CAMERA, LTD.,

                                                   Appellant,

                                  and

                        ARGUS INDUSTRIES, INC.,

                                  Appellant,

                                   v.

                    INTERNATIONAL TRADE COMMISSION,

                                  Appellee,

                                  and

                       FUJI PHOTO FILM CO., LTD.,

                                  Intervenor.



      Joseph W. Bain, Akerman Senterfitt, of West Palm Beach,  Florida,
argued for VastFame Camera, Ltd.

      Jean H. Jackson, Attorney, Office of the  General  Counsel,  U.S.
International  Trade  Commission,  of  Washington,   DC,   argued   for
appellee.  With her on the brief were Lyn M. Schlitt, General  Counsel,
and James M. Lyons, Deputy General Counsel.

      Lawrence Rosenthal, Stroock & Stroock & Lavan LLP, of  New  York,
New York, argued for intervenor.  With him on the  brief  were  Matthew
W. Siegal, Lisa A. Jakob, Angie M. Hankins and  Howard  D.  Shatz.   Of
counsel were Will E. Leonard and Michael L. Doane, Adduci, Mastriani  &
Schaumberg, L.L.P., of Washington, DC.

Appealed from:   United States International Trade Commission


         United States Court of Appeals for the Federal Circuit

                             03-1426, -1489

                         VASTFAME CAMERA, LTD.,
      Appellant,
                                  and
                        ARGUS INDUSTRIES, INC.,
      Appellant,
                                   v.
                    INTERNATIONAL TRADE COMMISSION,
      Appellee,
                                  and
                       FUJI PHOTO FILM CO., LTD.,
      Intervenor.
                     _____________________________

                       DECIDED:  October 7, 2004

                     _____________________________

Before CLEVENGER, BRYSON, and LINN, Circuit Judges.

LINN, Circuit Judge.

      This appeal is one of two related appeals from a decision of  the
International Trade Commission  (“Commission”)  involving  “single-use”
or “disposable” 35 mm film  cameras,  more  formally  known  as  “lens-
fitted film packages” (“LFFP”).   VastFame  Camera,  Ltd.  (“VastFame”)
appeals  from  the  Commission’s  determination  that  importation   of
VastFame’s LFFPs violates a pre-existing general exclusion  order.   In
re Certain Lens-Fitted Film Packages, Inv. No. 337-TA-406 (Int’l  Trade
Comm’n  May  2,   2002)   (“Initial   Determination”).    Because   the
Commission’s  decision  refusing  to  allow  VastFame  to  present  its
invalidity defense was contrary to 19 U.S.C. § 1337(c), we  vacate  the
Commission’s infringement determination with respect  to  VastFame  and
remand for further proceedings consistent with this opinion.
                               BACKGROUND
      This proceeding arises out  of  the  Commission’s  investigation,
entitled In re Certain Lens-Fitted Film  Packages,  which  resulted  in
the issuance of a general exclusion order on June 9,  1999.   Inv.  No.
337-TA-406   (Int’l   Trade   Comm’n   June    9,    1999)    (“Initial
Investigation”).  The Initial Investigation  involved  newly  made  and
refurbished LFFPs.  The Initial Investigation  also  involved  numerous
Fuji Photo Film Co., Ltd. (“Fuji”) patents, including U.S.  Patent  No.
4,884,087 (“the ’087 patent”).  At  least  one  party  in  the  Initial
Investigation raised an invalidity defense with  respect  to  the  ’087
patent, but the defense  was  abandoned  before  any  judgment  on  the
merits.
      VastFame was not a party to the Initial  Investigation,  and  its
VN99 and VN991  cameras  were  not  at  issue  in  that  investigation.
Although  VastFame  was  not  a  named  respondent   in   the   Initial
Investigation,  it  knew  that  the  proceedings  were  taking   place.
VastFame was notified of the proceedings in a  March  25,  1998  letter
from Fuji.  The letter informed VastFame that it  had  been  identified
as a potential respondent, offered to supply VastFame with  a  copy  of
the supplemented complaint, and advised VastFame that  whether  or  not
it joined, it would be bound by  the  decision.   VastFame  refused  to
join the proceedings.
      After the general exclusion order  issued,  VastFame  obtained  a
ruling from the U.S. Customs Service[1] (“Customs”) that the  VN99  and
VN991 cameras did not  violate  the  general  exclusion  order.   Lens-
Fitted  Film  Packages,  Pub.  No.  468780,  ITC  Inv.  No.  337-TA-406
(Customs Serv. Mar. 27, 2000).  Customs  only  considered  one  of  the
fifteen patents upon which  the  general  exclusion  order  was  based.
Nevertheless, having concluded that VastFame’s LFFPs  did  not  violate
the  general  exclusion  order,  Customs  allowed  the  importation  of
VastFame’s VN99 and VN991 cameras beginning in early 2000.
      In  June  2001,  Fuji  filed  a  complaint  with  the  Commission
requesting enforcement and advisory proceedings  to  determine  whether
VastFame and others had  violated  the  general  exclusion  order.   In
those proceedings, VastFame pled as a defense  that  claim  15  of  the
’087 patent was invalid under 35 U.S.C. §§ 102 and 103(a)  in  view  of
certain prior art references.  Vastfame fully  briefed  the  invalidity
defense and was prepared to put on its  case  at  the  trial,  but  the
Administrative  Law  Judge  (“ALJ”)  refused  to  consider  invalidity,
ruling that  the  defense  could  not  be  raised  in  the  enforcement
proceeding.  Initial Determination, slip  op.  at  64  n.33.   The  ALJ
explained his position at a pretrial conference.  At  that  conference,
he advised the parties that the Commission’s order  directing  the  ALJ
to conduct the proceedings did not permit him to entertain  a  validity
challenge to the patents underlying the general exclusion  order.   The
ALJ expressed the view that  the  Commission’s  order  limited  him  to
determining  only  whether   the   importation   of   the   enforcement
respondents’ cameras violated the general exclusion order.
      In February 2002, the ALJ conducted an evidentiary hearing on the
issues raised in Fuji’s complaint.  On May 2, 2002, the  ALJ  concluded
that the VN99 and VN991 cameras infringed only one  claim  asserted  by
Fuji, namely, claim 15 of  the  ’087  patent.   Initial  Determination.
Based on the finding of infringement, the ALJ held that  the  VN99  and
VN991 cameras were in violation of  the  general  exclusion  order  and
could no longer be imported.   Because  Fuji’s  complaint  sought  both
enforcement and advisory proceedings,  the  ALJ  simultaneously  issued
separate  opinions  in  the  form  of  an  initial   determination   on
enforcement and an advisory opinion regarding violation of the  general
exclusion order.  See In re Certain  Lens-Fitted  Film  Packages,  Inv.
No. 337-TA-406 (Int’l Trade Comm’n May 2, 2002) (advisory opinion).
      Upon  entry  of  the  ALJ’s  enforcement  initial  determination,
VastFame petitioned the Commission to remand the case to  the  ALJ  for
consideration of  the  previously  excluded  invalidity  defense.   The
Commission declined to review the ALJ’s decision on this issue  leaving
the decision as the final  determination  of  the  Commission.   In  re
Certain Lens-Fitted Film Packages, Inv.  No.  337-TA-406  (Int’l  Trade
Comm’n Aug. 7, 2002).  On May 15, 2003, the  Commission  finalized  its
proceedings.  In re Certain Lens-Fitted Film Packages, Inv. No. 337-TA-
406 (Int’l Trade Comm’n May 15, 2003).
      VastFame timely appealed to this  court.   We  have  jurisdiction
under 28 U.S.C. § 1295(a)(6).
                               DISCUSSION
                         A.  Standard of Review
      As the agency charged with  the  administration  of  § 1337,  the
Commission is entitled to appropriate deference to  its  interpretation
of the statute.  See United States v. Mead Corp.,  533  U.S.  218,  227
(2001); Chevron U.S.A. Inc. v. Natural Res.  Def.  Council,  Inc.,  467
U.S. 837, 844 (1984); Enercon GmbH v.  Int’l  Trade  Comm’n,  151  F.3d
1376, 1381 (Fed. Cir. 1998).  Under Chevron,  we  must  first  look  to
“whether Congress has  directly  spoken  to  the  precise  question  at
issue.”  467 U.S. at 842.   As  the  Supreme  Court  explained,  “If  a
court,  employing  traditional   tools   of   statutory   construction,
ascertains that Congress had an intention on the  precise  question  at
issue, that intention is the law and must be  given  effect.”   Id.  at
843 n.9.  However, “if the statute is silent or ambiguous with  respect
to the specific issue, the  question  for  the  court  is  whether  the
agency’s  answer  is  based  on  a  permissible  construction  of   the
statute.”  Id. at 843.  In the latter case,  this  court  will  “uphold
the [Commission’s] interpretation  of  [19  U.S.C.  § 1337]  if  it  is
reasonable in light of the language, policies and  legislative  history
of the statute.”  Enercon, 151 F.3d at 1381;  see  also  San  Huan  New
Materials High Tech, Inc. v. Int’l Trade Comm’n, 161  F.3d  1347,  1351
(Fed. Cir. 1998) (quoting Enercon, 151 F.3d at 1381).
           B.  Statutory Basis of the Enforcement Proceeding
      As a threshold matter, the parties disagree as to  the  statutory
basis of the enforcement proceeding before the Commission.  This is  an
issue we must decide before we can determine if  the  Commission  erred
in not providing VastFame an  opportunity  to  present  its  invalidity
defense.  VastFame argues that the enforcement  proceeding,  which  was
expressly  conducted  under  19  C.F.R.  § 210.75(b),  constituted   an
investigation under § 1337(b) because that is the only  provision  that
authorizes the type of inquiry engaged in by  the  Commission  in  this
case.  The Commission argues that § 1337 provides the  Commission  with
general authority to enforce its own exclusion orders.  It argues  that
multiple provisions in § 1337 indicate that Congress intended  for  the
Commission to have a role in enforcing its own orders.
      Neither party cites express statutory authority  for  enforcement
proceedings, and we have found none.  Because  the  statute  is  silent
with respect to the  Commission’s  authority  specifically  to  conduct
enforcement proceedings, the Commission’s interpretation of § 1337  may
be entitled  to  deference  “if  it  is  reasonable  in  light  of  the
language, policies and legislative history of the  statute.”   Enercon,
151 F.3d at 1381.
      The Commission is a creature of statute.   Sealed  Air  Corp.  v.
U.S. Int’l Trade Comm’n, 645 F.2d 976, 987 (CCPA 1981).  Thus, it  must
find authority for its actions in  its  enabling  statute.   See  Young
Eng’rs, Inc. v. U.S. Int’l Trade Comm’n, 721 F.2d 1305,  1311-12  (Fed.
Cir. 1983) (“5 C.F.R. § 211.57 cannot, and does  not,  provide  greater
authority than the statute.”).  The Commission cites 19 U.S.C.  § 1335,
which  gives  the  Commission  authority  to  “adopt  such   reasonable
procedures and rules and regulations as it  deems  necessary  to  carry
out its functions and duties.”  However, this  provision  does  nothing
more than provide the Commission with authority  to  promulgate  rules.
It does not give the Commission the substantive right to go beyond  the
express powers provided in § 1337.   Similarly,  the  Commission  cites
Rule 210.75(b), under which the enforcement proceeding  was  conducted.
However,  the  Rule  itself  cannot  provide   the   needed   statutory
authority.  See Young Eng’rs, 721 F.2d at 1312.   The  Commission  also
cites § 1337(f); however, that section concerns only cease  and  desist
orders and cannot provide the authority for Rule  210.75(b),  at  least
to the extent that the rule relates to the  enforcement  of  a  general
exclusion order.  As VastFame points out, a cease and desist order  was
not issued against it in this case.
      The Commission  also  cites  § 1337(k)(1),  which  provides  that
exclusion  orders  shall  remain  in  effect   until   the   Commission
determines otherwise; and § 1337(k)(2), which  provides  that  a  party
previously found in violation of § 1337 may petition for  a  change  of
an  exclusion  order.   Section  1337(k)(1)  says  nothing  about   the
Commission’s authority to conduct enforcement  proceedings.   Moreover,
it  was  Fuji,  not  the  Commission,  that   initiated   the   present
proceedings  when  it  filed  its  complaint.   Section  1337(k)(2)  is
inapplicable because VastFame had not “previously  been  found  by  the
Commission to be in  violation  of”  § 1337.   19  U.S.C.  § 1337(k)(2)
(2000).  And that would be true even  if  VastFame  had  requested  the
proceedings.  Finally, the Commission cites § 1337(i),  which  provides
that the Commission may order the seizure of goods previously  adjudged
to be in violation of § 1337 and  previously  denied  entry.   But  the
Commission does not argue  that  any  of  these  statutory  provisions,
including § 1337(i), expressly authorizes  the  enforcement  proceeding
conducted in this case.  The Commission uses § 1337(i) to buttress  its
argument made with respect to each of these statutory  provisions  that
the authority to promulgate Rule 210.75(b) emanates from  the  penumbra
of § 1337.  We cannot agree with the Commission that,  if  no  specific
statutory authority exists, the Commission has the  inherent  authority
to conduct enforcement proceedings.  Such a view is not  reasonable  in
light of the express powers provided in § 1337 and the  fact  that  the
Commission is a creature of statute.  Sealed Air  Corp.,  645  F.2d  at
987.  Because the Commission’s proffered interpretation of the  statute
is unreasonable, we reject it.
      While no  statutory  provision  of  § 1337  expressly  refers  to
enforcement  proceedings,  § 1337(b)  gives  the   Commission   general
authority  to  investigate  violations   of   the   statute.    Section
1337(b)(1) provides, “The  Commission  shall  investigate  any  alleged
violation  of  this  section  on  complaint  under  oath  or  upon  its
initiative.”  Section 1337(b), by  its  language,  is  not  limited  to
initial  complaints  and   authorizes   the   Commission   to   conduct
proceedings, including  proceedings  for  the  enforcement  of  general
exclusion  orders,  to  “investigate  any  alleged  violation  of  this
section on complaint under oath.”  In this case, the  Commission  began
its  investigation  as  a  result   of   Fuji’s   complaint.    Initial
Determination, slip op. at 1.  The statute further provides  that  “the
Commission shall publish notice thereof in the Federal  Register.”   19
U.S.C. § 1337(b)(1) (2000).   Consistent  with  this  requirement,  the
Commission, in this case, published notice of its investigation in  the
Federal Register.  In re Certain Lens-Fitted  Film  Packages,  66  Fed.
Reg.  40,721  (Int’l  Trade   Comm’n   Aug.   3,   2001)   (notice   of
investigation).
      Although the Commission seeks to  avoid  basing  its  enforcement
proceeding on § 1337(b), we hold that the Commission has  authority  to
conduct proceedings to enforce general exclusion orders, and  that  its
authority to conduct such proceedings arises under and  is  subject  to
the provisions of § 1337(b).
                            C.  “All Cases”
      Having determined that the Commission’s authority to  conduct  an
enforcement  proceeding  is  found  generally  in  § 1337(b),  we  next
consider  whether  the  Commission  violated  § 1337  in  not  allowing
VastFame  to  present  its  invalidity  defense.    The   language   of
§ 1337(b)(1) states:  “The Commission  shall  investigate  any  alleged
violation  of  this  section  on  complaint  under  oath  or  upon  its
initiative.”   19  U.S.C.   § 1337(b)(1)   (2000)   (emphasis   added).
Investigations are governed by § 1337(c), which states:
      The  Commission   shall   determine,   with   respect   to   each
      investigation conducted by it under this section, whether or  not
      there is a violation of this section . . . .  Each  determination
      under subsection (d) or (e) of this section shall be made on  the
      record after notice and opportunity for a hearing  in  conformity
      with the provisions of subchapter II of chapter  5  of  title  5.
      All legal and equitable defenses may be presented in all cases.

Id. § 1337(c) (emphases added).
      On its face, the statute appears to  require  the  Commission  to
allow the presentation of all  defenses  in  its  investigations.   The
Commission contends, however, that the nature of  a  general  exclusion
order and the considerable burden in establishing the need for such  an
order support the Commission’s view that general exclusion  orders  may
not be collaterally attacked.  The Commission argues that  § 1337(d)(2)
is a codification of  the  Commission’s  balancing  of  the  burden  on
domestic  patentees  of  repeated  litigation  and   the   effects   on
legitimate foreign trade of erroneous determinations as  laid  down  in
Certain Airless Paint Spray Pumps and Components  Thereof,  USITC  Pub.
No.  1199,  Inv.  No.  337-TA-90  (Nov.  1981).   Section   1337(d)(2),
however, only addresses the criteria for issuance of general  exclusion
orders.  It does not address whether general exclusion  orders  may  be
subject to collateral attack.  Section 1337(d)(2),  then,  provides  no
support for the Commission’s position.  Moreover, Congress’s intent  in
adding § 1337(d)(2) was  to  comply  with  its  obligations  under  the
General Agreement on Tariffs and Trade, not to adopt  the  Commission’s
policy objectives as announced in Certain Airless  Paint  Spray  Pumps.
See S. Rep. No. 103-412, at 120 (1994); H.R. Rep. No. 103-826, at  140-
42  (1994)  (“The  amendments  are  necessary  to  ensure   that   U.S.
procedures for dealing with alleged infringements by imported  products
comport with GATT 1994 ‘national treatment’ rules, while providing  for
the effective  enforcement  of  intellectual  property  rights  at  the
border.”).
      The Commission argues that  general  exclusion  orders  are  like
district court injunctions in that they must be obeyed until  they  are
modified, reversed, or vacated.  Thus,  in  the  Commission’s  view,  a
general exclusion order, like a district court injunction,  should  not
be subject to collateral attack.  However, a  general  exclusion  order
is not like a district court injunction with  respect  to  the  parties
affected.   A  general  exclusion  order  broadly  prohibits  entry  of
articles that infringe the relevant claims of a listed  patent  without
regard to whether the persons importing such articles were parties  to,
or were related to parties to, the investigation that led  to  issuance
of the general exclusion order.   See  19  U.S.C.  § 1337(d)(2)  (2000)
(“The authority of the Commission to order an exclusion from  entry  of
articles shall be limited to persons determined by  the  Commission  to
be  violating   this   section   unless   the   Commission   determines
that . . . .”); Hyundai Elecs. Indus. Co. v. U.S. Int’l  Trade  Comm’n,
899 F.2d 1204, 1210 (Fed. Cir. 1990) (stating that “in  an  appropriate
case the Commission can impose a general  exclusion  order  that  binds
parties  and  nonparties  alike  and  effectively  shifts  to  would-be
importers of potentially infringing articles, as a condition of  entry,
the burden of establishing noninfringement”).   By  contrast,  district
court  injunctions  are  generally  limited  to  the  parties  entering
appearances before the court or those aiding and abetting or acting  in
concert or participation with  a  party  before  the  court.   Additive
Controls & Measurement Sys., Inc. v.  Flowdata,  Inc.,  96  F.3d  1390,
1394 (Fed. Cir. 1996) (“Courts do not write legislation for members  of
the public at large; they frame decrees and judgments  binding  on  the
parties before them.”).  Because of the  differing  nature  of  general
exclusion orders and district court injunctions, the justification  for
the prohibition against collateral challenges  to  injunctions  is  not
directly  applicable  to   general   exclusion   orders.    Thus,   the
Commission’s analogy to district court injunctions  is  inapposite  and
unhelpful.
      Additionally, the  Commission  cites  Multi-Level  Touch  Control
Lighting Switches, Inv. No. 337-TA-225 (Int’l  Trade  Comm’n  July  16,
1987),  as  evidence  of  its  long  standing  policy  of  not  hearing
challenges to the validity of a patent underlying a  general  exclusion
order in enforcement or advisory  proceedings.   It  sets  forth  three
public policy arguments to support this position:  (1)  the  difficulty
in administering the statute if general exclusion  orders  are  subject
to repeated challenges; (2) the necessity of  preserving  the  original
complainant’s remedy once it  has  been  issued;  and  (3)  the  public
interest in avoiding uncertainty in the market place.   One  can  argue
that all of these policies would  be  similarly  served  by  preventing
subsequent accused infringers in district courts from  challenging  the
validity of a patent that had been previously  adjudicated  to  be  not
invalid.  However, that is not the law.  These policies do not  justify
the Commission’s interpretation in the absence of a  showing  that  the
statute may be fairly read the way the Commission  interprets  it.   To
the contrary, the intent of Congress with  respect  to  this  issue  is
quite clear.
      Nevertheless, the Commission argues that the “all cases” language
of § 1337(c) only applies to original investigations, not advisory  and
enforcement proceedings.  The  Commission  argues  that  the  following
language of § 1337(c) indicates that  the  statute  only  provides  for
presentation  of   all   defenses   in   proceedings   that   lead   to
determinations under § 1337(d) or (e):
      The  Commission   shall   determine,   with   respect   to   each
      investigation conducted by it under this section, whether or  not
      there is a violation of this section . . . .  Each  determination
      under subsection (d) or (e) of this section shall be made on  the
      record after notice and opportunity for a hearing  in  conformity
      with the provisions of subchapter II of chapter  5  of  title  5.
      All legal and equitable defenses may be presented in all cases.

19 U.S.C. § 1337(c) (2000).   Because  subsections  (d)  and  (e)  both
relate  to  the  issuance  of  exclusion   orders,   the   Commission’s
interpretation would require the Commission to first determine  whether
a complainant  was  likely  to  prevail  before  deciding  whether  all
defenses may be presented.  Moreover, the second sentence quoted  above
specifically refers to determinations “under subsection  (d)  or  (e),”
whereas the “all defenses” rule applies to “all  cases.”   If  Congress
had intended the “all defenses” provision to only apply to  proceedings
that lead to determinations under subsections (d) and (e), or  even  to
original proceedings, it could have easily said so.   The  Commission’s
proffered  interpretation  contravenes  the  clear  language   of   the
statute.
      VastFame is correct that the “all defenses”  provision  at  least
applies to investigations under § 1337(b).   The  opening  sentence  of
§ 1337(c) plainly indicates that  investigations  under  § 1337(b)  are
governed by § 1337(c).  No other language  in  § 1337(c)  modifies  the
broad reference to “all cases.”  Thus, we hold  that  the  phrase  “all
cases”  clearly  encompasses  investigations  under   § 1337(b).    The
necessary result, then, is that  participants  in  a  proceeding  under
§ 1337(b) must be permitted to raise all defenses.[2]
      The Commission argues that an interpretation  of  § 1337(c)  that
makes every Commission proceeding subject to the  “all  defenses”  rule
is inconsistent with § 1337(i).   Section  1337(i)  provides  authority
for the Commission to issue an order  requiring  articles  imported  in
violation of § 1337 to be seized and forfeited to the United States  if
the article was previously the  subject  of  an  attempted  importation
that was denied by reason of an order issued under subsection  (d)  and
upon such denial the party  seeking  to  import  was  informed  of  the
exclusion order and that any further attempts to import  such  articles
would result in seizure  and  forfeiture.   The  Commission’s  argument
misses the mark, however, because VastFame has not  asked  us  to  hold
that the “all defenses” provision applies to  all  proceedings  in  the
Commission.  VastFame argues that the “all defenses” provision  applies
to § 1337(b) at a minimum.  Thus, whether the “all defenses”  provision
applies to § 1337(i) is not before us.  We hold only  that  the  phrase
“all cases” encompasses investigations under § 1337(b).   We  need  not
and do not decide what other proceedings may fall within the  scope  of
“all cases.”
                            D.  Due Process
      Because we  hold  that  the  Commission  erred  by  not  allowing
VastFame to present its invalidity defense based on the clear  language
of § 1337(c), we do not reach  the  issue  of  whether  VastFame’s  due
process rights were violated in this case.
                   E.  VastFame’s Invalidity Defense
      As an alternative argument, VastFame asks this court  not  merely
to vacate but to reverse the Commission’s  final  determination  if  we
find, without further need of evidence,  that  claim  15  of  the  ’087
patent is invalid.  The Commission  declined  to  entertain  VastFame’s
invalidity defense; it has not ruled on the  merits  of  this  defense.
In Beloit Corp. v. Valmet Oy, 742 F.2d 1421,  1423  (Fed.  Cir.  1984),
this court held that it “does not sit to  review  what  the  Commission
has not decided.”  Accordingly, the court will not consider the  merits
of the validity defense that was  neither  heard  nor  decided  by  the
Commission.  Instead, having determined that the  Commission  erred  in
excluding the validity challenge, we remand the case to the  Commission
for  consideration  of  VastFame’s  invalidity  defense  in  the  first
instance.
                               CONCLUSION
      Because  the  Commission’s  decision  precluding  VastFame   from
raising its invalidity defense was not reasonable or supported  by  the
language, policies, and legislative history of § 1337,  we  vacate  the
Commission’s enforcement decision and remand  for  further  proceedings
consistent with this opinion.
                          VACATED AND REMANDED
                                 COSTS
      No costs.


-----------------------
      [1]   As of March 1, 2003, the U.S. Customs  Service  became  the
Bureau of Customs and Border Protection in the Department  of  Homeland
Security.  The Department of the Treasury still retains authority  over
Customs’ revenue functions including enforcement of 19  U.S.C.  § 1337.
Homeland Security Act of 2002, P.L. 107-296,  §§ 412,  415,  116  Stat.
2135, 2179-81.
      [2]   Our interpretation of the statutory language should not  be
read to preclude application of traditional principles of res  judicata
or collateral estoppel.  See, e.g., San Huan New Materials  High  Tech,
Inc. v. Int’l Trade Comm’n, 161 F.3d 1347,  1357-58  (Fed.  Cir.  1998)
(“There is no denial of due process in applying to San Huan  the  claim
construction that it declined to  challenge  by  offering  consent  and
seeking termination of  the  investigation.”);  Aktiebolaget  Karlstads
Mekaniska Werkstad v. U.S. Int’l Trade  Comm’n,  705  F.2d  1565,  1578
(Fed. Cir. 1983) (“Section 337(c) was not violated;  KMW  had  adequate
opportunity to present its legal and equitable defenses, albeit  during
the first investigation.”).  However, this is  not  a  case  where  any
form of preclusion is appropriate.  Vastfame was not  a  party  to  the
Initial Investigation before the Commission and, thus, did not  have  a
prior opportunity to  raise  the  invalidity  issue  it  now  seeks  to
present.

