A&jmanufacturing, LLC and A&jmanufacturing, Inc. v. United States International Trade Commission

N OTE: This order is nonprecedential.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 N EWMAN, D YK, and HUGHES , Circuit Judges.
D YK, Circuit Judge.
O R D E R
Case: 14-1742 Document: 25 Page: 1 Filed: 11/25/2014

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A& J MANUFACTURING, LLC v. ITC 2
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: 2 Filed: 11/25/2014

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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.
Case: 14-1742 Document: 25 Page: 3 Filed: 11/25/2014

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A& J MANUFACTURING, LLC v. ITC 4
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,
I T I S O RDERED T HAT :
(1) The motion to dismiss is granted.
(2) The motion to stay is denied as moot.
(3) Each side shall bear its own costs.
F OR THE COURT
/s/ Daniel E. O’Toole
Daniel E. O’Toole
Clerk of Court
s24
ISSUED AS A MANDATE: November 25, 2014
Case: 14-1742 Document: 25 Page: 4 Filed: 11/25/2014

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