Case: 14-1742   Document: 25     Page: 1   Filed: 11/25/2014




           NOTE: This order is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

        A&J MANUFACTURING, LLC AND A&J
             MANUFACTURING, INC.,
                  Appellants,

                            v.

     UNITED STATES INTERNATIONAL TRADE
                COMMISSION,
                   Appellee,

                          AND

                  CHAR-BROIL, LLC,
                       Intervenor.
                 ______________________

                       2014-1742
                 ______________________

    Appeal from the United States International Trade
 Commission in Investigation No. 337-TA-895.
                 ______________________

                     ON MOTION
                 ______________________
    Before NEWMAN, DYK, and HUGHES, Circuit Judges.
 DYK, Circuit Judge.
                       ORDER
Case: 14-1742    Document: 25     Page: 2   Filed: 11/25/2014



 2                           A&J MANUFACTURING, LLC   v. ITC



     The International Trade Commission (“Commission”)
 moves to dismiss this appeal as premature, or in the
 alternative to stay the appeal pending the Commission’s
 Final Determination regarding the other issues still
 pending. A&J Manufacturing, LLC and A&J Manufactur-
 ing, Inc. (“Appellants”) oppose the motion to dismiss but
 do not oppose a stay.
     This appeal arises out of an investigation by the
 Commission under section 337 of the Tariff Act of 1930,
 19 U.S.C. § 1337. Appellants brought a complaint assert-
 ing certain outdoor grill products infringed U.S. Patent
 No. 8,381,712 (“the ’712 patent”). On April 17, 2014, the
 Administrative Law Judge (“ALJ”) granted-in-part re-
 spondents’ motion for summary determination regarding
 eight of those products, concluding that seven of the
 accused products do not infringe the asserted claims of
 the ’712 patent and that there was a question of fact as to
 the remaining product.
     On June 24, 2014, the Commission issued notice of its
 determination to affirm the ALJ’s findings of nonin-
 fringement of claims 1 and 17 of the ’712 patent with
 respect to four of the accused products, but vacated all of
 the ALJ’s findings with respect to claim 10 of the ’712
 patent, concluding that the claim contained a means-plus-
 functions limitation. The Commission directed the ALJ to
 consider, in the first instance, whether the products
 infringed under its understanding of the limitation. This
 appeal followed.
     Section 1337(c) of Title 19 provides, in relevant part,
 that “[a]ny person adversely affected by a final determi-
 nation of the Commission under subsection (d) . . . may
 appeal such determination, within 60 days after the
 determination becomes final, to the United States Court
 of Appeals for the Federal Circuit.” 19 U.S.C. § 1337(c).
 Subsection (d) deals with orders of the Commission decid-
Case: 14-1742     Document: 25       Page: 3   Filed: 11/25/2014



  A&J MANUFACTURING, LLC    v. ITC                          3



 ing whether or not to exclude articles from entry into the
 United States as a result of an investigation.
      By its terms, § 1337(c) requires: (1) that the Commis-
 sion render a determination “under subsection (d),” name-
 ly, an “administrative decision . . . excluding or refusing to
 exclude articles from entry,” Block v. Int’l Trade Comm’n,
 777 F.2d 1568, 1571 (Fed. Cir. 1985); (2) that exclusion
 determination is the “final determination of the Commis-
 sion”; and (3) the person seeking appeal is “adversely
 affected” by that final determination.
     Those requirements are not met here. Even though
 the Commission’s June 24, 2014 order did not result in
 the exclusion of articles and Appellants were “adversely
 affected” by that decision, it is clear that the Commission
 has not yet issued a “final determination” as to whether to
 exclude the articles from entry under the ’712 patent. To
 the contrary, pursuant to that order, the ALJ has been
 directed to assess infringement of all of the accused
 products that were the subject of the Commission’s order,
 which may or may not lead to a future exclusion order. *
      Asserting that a final determination as to claims 1
 and 17 of the ’712 patent has been made, Appellants
 compare this case to Broadcom Corp. v. International
 Trade Commission, 542 F.3d 894 (Fed. Cir. 2008). There,
 this court allowed for an immediate appeal from a Com-
 mission’s determination that left “no provision for Presi-
 dential review, or for other administrative proceedings,
 following a determination that does not lead to an exclu-
 sion order.” Id. at 896 (internal citation omitted).



     * The Commission additionally notes that there are
 ongoing proceedings relating to accused products that
 were not subject to the motion for summary determina-
 tion as well as for products that the Commission denied
 summary determination.
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 4                               A&J MANUFACTURING, LLC    v. ITC



     The circumstances here are far different than in
 Broadcom. The appellant in that case sought review after
 the adoption of the ALJ’s conclusion that there had been
 no section 337 violation because respondents’ chipsets did
 not infringe the two patents in question. Id. The fact
 that there were no additional proceedings that could have
 precluded the allegedly infringing goods from being
 imported logically made the Commission’s decision its
 “final determination” for § 1337(c) purposes.
     In contrast, here, given the ongoing proceedings con-
 cerning whether the articles infringe the ’712 patent
 under a means-plus-function construction, the issue of
 whether Appellants can obtain an exclusion order is still
 before the Commission. As such, there has been no final
 determination under § 1337(c) that can be appealed to
 this court at this time. This simply means, as the Com-
 mission points out, that Appellants cannot seek review
 until the Commission issues its final determination.
       Accordingly,
       IT IS ORDERED THAT:
       (1) The motion to dismiss is granted.
       (2) The motion to stay is denied as moot.
       (3) Each side shall bear its own costs.
                                       FOR THE COURT

                                       /s/ Daniel E. O’Toole
                                       Daniel E. O’Toole
                                       Clerk of Court
 s24


 ISSUED AS A MANDATE: November 25, 2014
