CBP is unlikely to make new adverse inferences about companies that are unaware of antidumping or countervailing duty evasion allegations and don't respond to information requests, said Carrie Owens, acting CBP director of operations for Enforce and Protect Act and E-Allegations. Owens discussed the EAPA procedures and the use of adverse inference (see 1608190014) during a panel at the East Coast Trade Symposium on Dec. 2. "If a party is not aware it is being requested information pursuant to an EAPA investigation, my personal view is I'm unsure how we would then apply an adverse inference to that," she said. That includes responsiveness to Customs Form 28 that CBP may issue as part of the investigation, Owens said.
Before approving a motion by counsel at Aran Correa to withdraw from representing defendant Bras Trading, the court should first resolve plaintiff Eutelsat's motion of summary judgment, Eutelsat said in a filing (in Pacer) Wednesday in U.S. District Court in Miami. In the motion (in Pacer) to withdraw Tuesday, Aran Correa cited "irreconcilable differences" in case strategies and administration and Bras' "failure to substantially fulfill obligations" to the firm. Eutelsat accused Bras of delaying prosecution, with two motions to stay, and said Aran Correa is the third firm that has withdrawn from representing the company. It also said withdrawal now, months after the briefing of the summary judgment motion, could cause further delay. Eutelsat said if the court grants the withdrawal motion, it should condition it on Bras being required to get new attorneys within 15 days. Bras didn't comment Thursday. Eutelsat is suing the company for allegedly failing to guarantee its subsidiary J C P Melo Telecomunicacoes' payments to Eutelsat for satellite broadband capacity. Bras said Eutelsat fulfilled only some of the services for which it billed (see 1608020014).
Customs and Border Protection ruled a redesign of network switches imported by Arista Networks falls outside of an International Trade Commission limited exclusion order (LEO). The CBP ruled in favor of Arista, which is in litigation with Cisco over patent infringement allegations. The ITC began a formal Tariff Act Section 337 enforcement investigation in October after Cisco filed a complaint that Arista ignored the LEO, which prohibits imports of patent-infringing products (see 1610040060). Based on CBP's highly technical review of the Arista switches and the patents at issue, the agency said "the infringing functionality has been removed and that Arista has carried its burden to establish that the articles in question are not covered by the patents at issue and therefore do not, on this basis, fall within the scope of the LEO." The decision "validates our good-faith efforts to address the ITC’s findings," said Arista General Counsel Marc Taxay in an emailed statement. "We look forward to resuming the importation of our redesigned products.” CBP "issued instructions to the U.S. ports to permit entry of the Company’s redesigned products for consumption and sale in the United States," Arista said in a Nov. 21 SEC filing. This week, Cisco said it remains concerned with redesigned products imported by Arista, noting the first company's CBP complaint said "'the claim of a workaround is a thin veil to cover Arista’s ongoing infringement and convince its customers, many of whom have strongly supported protection of intellectual property rights, that they are buying a product that is non-infringing,'” emailed a spokesman. "The enforcement case continues with an initial ruling expected in June 2017 and the ITC is not bound by the customs decision.”
Customs and Border Protection ruled a redesign of network switches imported by Arista Networks falls outside of an International Trade Commission limited exclusion order (LEO). The CBP ruled in favor of Arista, which is in litigation with Cisco over patent infringement allegations. The ITC began a formal Tariff Act Section 337 enforcement investigation in October after Cisco filed a complaint that Arista ignored the LEO, which prohibits imports of patent-infringing products (see 1610040060). Based on CBP's highly technical review of the Arista switches and the patents at issue, the agency said "the infringing functionality has been removed and that Arista has carried its burden to establish that the articles in question are not covered by the patents at issue and therefore do not, on this basis, fall within the scope of the LEO." The decision "validates our good-faith efforts to address the ITC’s findings," said Arista General Counsel Marc Taxay in an emailed statement. "We look forward to resuming the importation of our redesigned products.” CBP "issued instructions to the U.S. ports to permit entry of the Company’s redesigned products for consumption and sale in the United States," Arista said in a Nov. 21 SEC filing. This week, Cisco said it remains concerned with redesigned products imported by Arista, noting the first company's CBP complaint said "'the claim of a workaround is a thin veil to cover Arista’s ongoing infringement and convince its customers, many of whom have strongly supported protection of intellectual property rights, that they are buying a product that is non-infringing,'” emailed a spokesman. "The enforcement case continues with an initial ruling expected in June 2017 and the ITC is not bound by the customs decision.”
Customs and Border Protection ruled a redesign of network switches imported by Arista Networks falls outside of an International Trade Commission limited exclusion order (LEO). The CBP ruled in favor of Arista, which is in litigation with Cisco over patent infringement allegations. The ITC began a formal Tariff Act Section 337 enforcement investigation in October after Cisco filed a complaint that Arista ignored the LEO, which prohibits imports of patent-infringing products (see 1610040060). Based on CBP's highly technical review of the Arista switches and the patents at issue, the agency said "the infringing functionality has been removed and that Arista has carried its burden to establish that the articles in question are not covered by the patents at issue and therefore do not, on this basis, fall within the scope of the LEO." The decision "validates our good-faith efforts to address the ITC’s findings," said Arista General Counsel Marc Taxay in an emailed statement. "We look forward to resuming the importation of our redesigned products.” CBP "issued instructions to the U.S. ports to permit entry of the Company’s redesigned products for consumption and sale in the United States," Arista said in a Nov. 21 SEC filing. This week, Cisco said it remains concerned with redesigned products imported by Arista, noting the first company's CBP complaint said "'the claim of a workaround is a thin veil to cover Arista’s ongoing infringement and convince its customers, many of whom have strongly supported protection of intellectual property rights, that they are buying a product that is non-infringing,'” emailed a spokesman. "The enforcement case continues with an initial ruling expected in June 2017 and the ITC is not bound by the customs decision.”
Cisco Systems remains concerned with redesigned products imported by Arista Networks that CBP recently ruled are outside of the scope of an International Trade Commission Section 337 determination (see 1611290032). "Cisco filed an enforcement complaint with the ITC in August which notes our testing of allegedly redesigned products and why we believe 'the claim of a workaround is a thin veil to cover Arista’s ongoing infringement and convince its customers, many of whom have strongly supported protection of intellectual property rights, that they are buying a product that is non-infringing,'” a Cisco spokesman said. "The enforcement case continues with an initial ruling expected in June 2017 and the ITC is not bound by the customs decision.”
The following lawsuits were filed at the Court of International Trade during the week of Nov. 21-27:
The U.S. lumber industry affected by unfairly priced imports of wood products from Canada and China deserves full attention from the executive branch, Senate Finance Ranking Member Ron Wyden said in a statement (here). The Committee Overseeing Action for Lumber International Trade Investigations or Negotiations on Nov. 25 filed a petition with Commerce and the International Trade Commission requesting antidumping and countervailing duties on softwood from Canada (see 1611250036). A moratorium on new AD/CVD petitions from the nation ended in October, one year after the 2006 Softwood Lumber Agreement’s expiration (see 1610120020). The Coalition for Fair Trade in Hardwood Plywood on Nov. 17 filed a petition with Commerce and the ITC requesting new AD and CV duties on hardwood plywood from China (see 1611180039). “Sawmill workers and communities devastated by unfairly traded softwood lumber demand full enforcement of U.S. trade laws and nothing less,” Wyden said in a statement. “American workers and forestry communities need relief from unfair trade and they need it now, on everything from today’s softwood lumber case to the recent case filed against Chinese producers of hardwood plywood.” The U.S. and Canada continue to discuss the effect of Canadian government softwood policies on the U.S. market, including the possibility of a new Softwood Lumber Agreement.
The Food and Drug Administration is adopting the flexible approach urged by industry for filing in ACE of some data elements that may not be known at time of entry, in its final rule setting ACE filing requirements (here). Data elements for active pharmaceutical ingredients will remain optional, and the agency will continue to allow for a “UNK” intended use code where the intended use code is unknown at time of entry, the final rule said. However, FDA declined to allow more time for implementation of new ACE requirements, setting an effective date of Dec. 29 despite calls to allow several months for implementation.
Provisions of the tariff schedule referencing a “high proportion” of one component mean there is a “high ratio of that component compared to the other components,” the U.S. Court of Appeals for the Federal Circuit said on Nov. 18 (here) as it affirmed a lower court ruling finding Tyco’s glass bulbs filled with liquid are articles of glass for tariff classification purposes. For Tyco’s glass bulbs, which have only two component parts and are mostly glass by weight, a high proportion is more than 50 percent, meaning the bulbs are glass articles for tariff classification purposes.