Reviewing the American University Law Review on Extraterritoriality: A Critical Response to Viki Economides, Note, Tianrui Group Co. v. International Trade Commission: The Dubious Status of Extraterritoriality and the Domestic Industry Requirement Requirement of Section 337

Abstract

Recently, the Federal Circuit upheld the Commission’s decision to exclude goods based on a trade secret violation that largely happened abroad. In that case, Amsted Industries — an American manufacturer of cast steel railway wheels — licensed a discontinued secret process to a Chinese foundry. Amsted also developed and used its own newer process domestically. Unfortunately, another Chinese manufacturer, TianRui Group Company Limited and TianRui Group Foundry Co. Ltd. (collectively, TianRui), hired a number of employees away from the licensed foundry and produced wheels with that product, violating domestic trade secret protection. TainRui then sought to import those wheels into the U.S. The ITC excluded those wheels, and the Federal Circuit upheld their exclusion. The American University Law Review printed a critique of the opinion by Viki Economides, titled TianRui Group Co. v. International Trade Commission: The Dubious Status of Extraterritoriality and the Domestic Industry Requirement of Section 337. Ms. Economides criticized the opinion on two grounds: First, she argued that the Federal Circuit incorrectly applied the presumption against extraterritoriality; and second, she argued that the Federal Circuit misapplied the domestic industry requirement. Her critique remains incomplete, however, as the Federal Circuit correctly decided the case for at least two reasons. first, the Federal Circuit correctly applied the “extraterritorial presumption” canon of construction; and second, the recent Federal Circuit decision in InterDigital Communications LLC v. ITC abrogates her argument that the domestic industry fails for businesses that only license the IP-at-issue. Furthermore, her argument misconstrues the domestic industry requirement as focusing only on the specific IP in question, rather than the more general question of whether the unfair act damages the company’s domestic industry directly. This Article explores and rebuts those two arguments.