Zircon Corp. v. International Trade Commission

United States Court of Appeals
for the Federal Circuit
______________________
ZIRCON CORP.,
Appellant
v.
INTERNATIONAL TRADE COMMISSION,
Appellee
STANLEY BLACK & DECKER, INC., BLACK &
DECKER (U.S.), INC.,
Intervenors
______________________
2022-1649
______________________
Appeal from the United States International Trade
Commission in Investigation No. 337-TA-1221.
______________________
Decided: May 8, 2024
______________________
J OHN R. HUTCHINS , Banner & Witcoff, Ltd., Washing-
ton, DC, argued for appellant. Also represented by P AUL T.
Q UALEY , BRADLEY C HARLES WRIGHT ; O MAIR MAQSOOD
F AROOQUI, Palo Alto Legal Group, PC, Palo Alto, CA.
BENJAMIN S. RICHARDS , Office of the General Counsel,
United States International Trade Commission, Washing-
ton, DC, argued for appellee. Also represented by WAYNE
W. HERRINGTON, SIDNEY A. ROSENZWEIG.
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ZIRCON CORP. v. ITC 2
BRYAN P ATRICK COLLINS , Pillsbury Winthrop Shaw
Pittman LLP, McLean, VA, argued for intervenors. Also
represented by J ACK S. BARUFKA , R OBERT M. F UHRER ; T HE-
RESA A NN ROOZEN, Washington, DC; K ECIA J ANNELL REYN-
OLDS , Paul Hastings LLP, Washington, DC.
______________________
Before L OURIE, BRYSON, and STARK, Circuit Judges.
BRYSON, Circuit Judge.
In 2020 appellant Zircon Corp. filed a complaint in the
United States International Trade Commission (“the Com-
mission”) alleging a violation of section 337 of the Tariff Act
of 1930, 19 U.S.C. § 1337. Section 337 prohibits “[t]he im-
portation into the United States, the sale for importation,
or the sale within the United States after importation” of
articles that infringe a U.S. patent. Id. § 1337(a)(1)(B)(i).
The Commission instituted an investigation based on Zir-
con’s complaint. A Commission Administrative Law Judge
(“ALJ”) issued an initial determination in the investigation
finding no violation of section 337. On review, the Com-
mission affirmed the ALJ’s finding of no violation. We af-
firm.
I
A
This case involves electronic stud finders. A wall stud
is a wooden board used in the framing of a building. After
a building is constructed, the studs are not visible because
they are installed behind material such as drywall that
forms the wall surfaces in the interior of the building. A
stud finder is a device used to locate studs behind the wall
surfaces so that, for example, items can be secured to the
wall by being attached not just to the drywall, but also to
the studs behind the drywall.
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ZIRCON CORP. v. ITC 3
Zircon manufactures and sells electronic stud finders.
Zircon owns several patents related to electronic stud
finder technology, including the patents at issue in this
case: U.S. Patent No. 6,989,662 (“the ’662 patent”); U.S. Pa-
tent No. 8,604,771 (“the ’771 patent”); and U.S. Patent No.
9,475,185 (“the ’185 patent”). The ’662 patent describes a
mechanism for automatically recalibrating a stud finder.
Claim 1 is representative:
1. A method of recalibrating a stud sensing device
for finding a location of a stud positioned behind a
surface, the method comprising the acts of:
holding the stud sensing device at a first location
on the surface;
placing the stud sensing device in an [sic] calibra-
tion mode;
sensing a first density at the first location in the
calibration mode;
setting a calibration value based on the first sensed
density;
placing the stud sensing device in an operating
mode;
moving the stud sensing device to a second location
on the surface;
sensing a second density at the second location;
setting a second density value based on the second
sensed density;
the stud sensing device determining if it was cali-
brated over or near a stud; and
the stud sensing device recalibrating itself if it de-
termined that the stud sensing device was cali-
brated over or near the stud.
’662 patent at 7:49–8:3.
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ZIRCON CORP. v. ITC 4
The ’771 and ’185 patents describe grips on a hand tool
or stud finder that provide an axis of rotation. Claim 1 of
the ’771 patent is representative:
1. A hand tool for sensing a measurement behind a
target surface, the hand tool comprising:
a housing;
a sensor coupled in the housing; and
a grip having a pair of three-dimensional concave
finger holds positioned at opposite sides of the grip
to provide an axis of rotation.
’771 patent at 6:31–37.
Claim 1 of the ’185 patent is nearly identical to claim 1
of the ’771 patent except for the last clause, which recites
“only two depressed finger holds positioned at opposite
sides of a grip allowing pivoting to provide an axis of rota-
tion.” ’185 patent at 6:46–52.
B
Zircon’s complaint alleged that the importation and
sale of certain electronic stud finders, metal detectors, and
electrical scanners by Stanley Black & Decker, Inc. (“Stan-
ley”), and Black & Decker (U.S.), Inc. (“Black & Decker”)
violated section 337 of the Tariff Act by infringing various
claims of the ’662 patent, the ’771 patent, and the ’185 pa-
tent. J. App. 984–1040.1 To establish a section 337
1 Zircon initially alleged that the accused products
also infringed certain claims of U.S. Patent No. 7,148,703
(“the ’703 patent”). The ’703 patent was terminated from
the investigation, however, and is not at issue in this ap-
peal. See Certain Elec. Stud Finders, Metal Detectors and
Elec. Scanners, Inv. No. 337-TA-1221, Comm’n Op., 2022
WL 834280, at *1 n.1 (Mar. 14, 2022) (“Commission Opin-
ion”).
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ZIRCON CORP. v. ITC 5
violation, Zircon was required to show that “an industry in
the United States, relating to the articles protected by the
patent . . . exists or is in the process of being established.”
19 U.S.C. § 1337(a)(2). This is referred to as the “domestic
industry” requirement. Zircon alleged that it met that re-
quirement based on its investment in plant and equipment,
its employment of labor and capital, and its investment in
the exploitation of the asserted patents. J. App. 1034.
The Commission instituted an investigation naming
Stanley and Black & Decker as the respondents. 85 Fed.
Reg. 62758, 62758–59 (Oct. 5, 2020). Stanley and Black &
Decker disputed Zircon’s infringement and domestic indus-
try allegations. They also argued that the asserted claims
of the ’662 patent are invalid for obviousness and that the
asserted claims of the ’771 and ’185 patents are invalid for
anticipation, obviousness, and lack of adequate written de-
scription. See Matter of Certain Elec. Stud Finders, Metal
Detectors & Elec. Scanners, Inv. No. 337-TA-1221, Initial
Determination, 2021 WL 5231410, at *13, *45, *67 (Oct. 7,
2021) (“Initial Determination”).
Following an evidentiary hearing and briefing, the ALJ
issued an initial determination on October 7, 2021, finding
that the importation and sale of the accused Stanley and
Black & Decker products did not violate section 337. Id. at
*96–97. In reaching that conclusion, the ALJ found that
the economic prong of the domestic industry requirement
was not satisfied with respect to any of the asserted pa-
tents. Id. at *97. As to the asserted patents, the ALJ found
that certain of the accused products infringed claims 1, 9,
and 16 of the ’662 patent and that claim 17 of that patent
was invalid as obvious. Id. at *96. The ALJ further found
that none of the accused products infringed any of the as-
serted claims of the ‘771 or ‘185 patents. Id. at *96–97.
C
Zircon sought Commission review of the initial deter-
mination. The Commission upheld the ALJ’s
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ZIRCON CORP. v. ITC 6
determination that there was no violation of section 337,
for two independent reasons. Commission Opinion at *32.
First, with respect to the domestic industry require-
ment, the Commission affirmed the ALJ’s determination
that Zircon had not satisfied the economic prong of that re-
quirement. Id. at *28. Before the ALJ and the Commis-
sion, Zircon argued that it satisfied section 337(a)(3)(A),
(B), and/or (C) for all of its asserted patents. Zircon based
that claim on an aggregation of its investments across all
its domestic stud finder products, most of which practiced
fewer than all the asserted patents. With respect to the
’662 patent, Zircon also argued that its research and devel-
opment expenditures on a computer chip used in the Zircon
products satisfied section 337(a)(3)(C). The Commission
rejected both arguments.
As to Zircon’s aggregation argument, the Commission
found that Zircon had not met its burden to establish a do-
mestic industry related to any of its asserted patents. The
Commission explained that by aggregating its investments
across domestic industry products that practiced different
patents or groups of patents, Zircon “failed to provide the
Commission with an adequate basis to evaluate the invest-
ments and the significance of those investments with re-
spect to each asserted patent.” Commission Opinion at
*28.2
2 The ALJ noted that Zircon relied on aggregated
data but went on to assess the significance of Zircon’s ex-
penditures under section 337(a)(3)(A)–(C). Initial Determi-
nation at *89 n.14. The ALJ found Zircon failed to show its
investments in plant and equipment were significant, be-
cause Zircon’s domestic expenditures in this category ac-
counted for only a small portion of its overall expenditures
due to its heavy reliance on overseas manufacturing
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ZIRCON CORP. v. ITC 7
As to Zircon’s argument directed to the ’662 patent, the
Commission affirmed the ALJ’s determination that the ev-
idence Zircon relied on to attribute a particular portion of
its research and development expenditures to the develop-
ment of the computer chip used in its products was unreli-
able. Id. at *32; Initial Determination at *93–94.
Second, the Commission found each of the claims of the
’662, ’771, and ’185 patents that were before the Commis-
sion were either invalid or not infringed. The Commission
found that all the asserted claims of the ’662 patent would
have been obvious in view of four prior art references; that
several claims of the ’771 and ’185 patents were invalid as
anticipated by or obvious in light of Zircon’s original stud
finder; and that several of the claims of the ’771 and ’185
patents were not infringed. Commission Opinion at *16,
*20–21, *23–25. Zircon appealed.
II
As noted, in order to obtain relief under section 337 a
complainant must show that “an industry in the United
States, relating to the articles protected by the patent, . . .
exists or is in the process of being established.” 19 U.S.C.
§ 1337(a)(2). A complainant can satisfy that requirement
by showing that, “with respect to the articles protected by
the patent,” there is “(A) significant investment in plant
facilities. Id. at *89–90. The ALJ found Zircon failed to
show its employment of labor or capital was significant af-
ter excluding Zircon’s expenditures on sales and market-
ing, and that Zircon failed to show its research and
development expenditures were substantial, because it did
not establish a sufficient nexus between those expendi-
tures and its domestic industry products. Id. at *90–93.
The Commission took no position on that portion of the
ALJ’s analysis because it viewed aggregation as a thresh-
old issue. Commission Opinion at *29.
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ZIRCON CORP. v. ITC 8
and equipment; (B) significant employment of labor or cap-
ital; or (C) substantial investment in its exploitation, in-
cluding engineering, research and development, or
licensing.” 19 U.S.C. § 1337(a)(3)(A)–(C). That provision
is referred to as the “economic prong” of the domestic in-
dustry requirement.3
The Commission held that Zircon did not meet its bur-
den to show that the economic prong of the domestic indus-
try requirement was satisfied. Commission Opinion at
*28. Throughout these proceedings, Zircon has relied on
evidence of its cumulative expenditures on all 53 of its do-
mestic industry products to argue that its investments in
plant and equipment, labor or capital, and/or research and
development have been significant or substantial. Zircon
has acknowledged, however, that not all 53 products prac-
tice all three of the asserted patents. Rather, Zircon’s evi-
dence showed that of the 53 products, 14 practice all three
of the asserted patents; 21 practice both the ’771 and ’185
patent; 16 practice only the ’662 patent; and two practice
only the ’771 patent. See J. App. 14722–23, Q/A 42, 4742.
Zircon did not allocate its expenditures on its 53 stud finder
products separately with respect to each of its products or
each of the asserted patents. The Commission found that
Zircon’s failure to do such an allocation precluded the Com-
mission from evaluating the significance of Zircon’s invest-
ments with respect to each asserted patent. Commission
Opinion at *28.
3 The domestic industry requirement also has a
“technical prong,” which requires the complainant to show
that its domestic industry products are “protected by the
patent” at issue. 19 U.S.C. § 1337(a)(2); see Hyosung TNS
Inc. v. Int’l Trade Comm’n, 926 F.3d 1353, 1361 (Fed. Cir.
2019). There is no dispute on appeal that the technical
prong is satisfied in this case.
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ZIRCON CORP. v. ITC 9
Zircon argues that the Commission erred by requiring
a patent-by-patent breakdown of its investments and that,
in doing so, the Commission departed from its “flexible,
market-oriented approach to domestic industry.” Certain
Wireless Devices with 3G and/or 4G Capabilities & Com-
ponents Thereof, Inv. No. 337-TA-868, USITC Pub. 4475,
Initial Determination at 413 (July 29, 2013). In response,
the Commission and the intervenors argue that while the
Commission has the flexibility to credit various ways of
showing significant or substantial investments in a domes-
tic industry, the complainant must, as a threshold matter,
provide the Commission with sufficient evidence to show
that its domestic investment as to the articles protected by
each patent is significant under section 337(a)(3)(A) or (B)
or is substantial under section 337(a)(3)(C). Because Zir-
con failed to present a “reasonable allocation method[] to
estimate the amount of [Zircon’s] investments that can be
attributed to each asserted patent,” the Commission held
that Zircon had failed to satisfy the statutory requirement
that it establish the existence of an industry relating to ar-
ticles “protected by the patent,” as required by section 337.
Commission Opinion at *30. We agree and conclude that
substantial evidence supports the Commission’s finding
that Zircon failed to meet that threshold.
A
The parties’ dispute centers on the question whether
section 337 permits Zircon to rely on investment data ag-
gregated across different products protected by different
patents. Zircon argues that section 337 requires only that
it tie its expenditures to articles protected by some or all of
the three asserted patents and that it need not segregate
its investments on a patent-by-patent basis. The Commis-
sion and the intervenors argue that the statutory language
requires Zircon to establish the existence of a separate do-
mestic industry for articles related to each patent.
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ZIRCON CORP. v. ITC 10
Under section 337(a)(2) of the statute, as construed by
the Commission, a complainant can establish a section 337
violation by the importation of products that infringe a
valid patent only if there is a domestic industry “relating
to the articles protected by the patent.” 19 U.S.C.
§ 1337(a)(2). That means that the domestic industry typi-
cally must relate to articles that are all protected by a par-
ticular patent, not to a group of articles variously protected
by different patents.
Section 337(a)(3) similarly requires the complainant to
show significant or substantial expenditures on certain ac-
tivities “with respect to the articles protected by the pa-
tent . . . .” 19 U.S.C. § 1337(a)(3). That subsection likewise
ties the domestic industry to products protected by a par-
ticular patent.
The Commission noted that Zircon’s expert “aggre-
gated the domestic industry products for the ’662 patent,
the ’771 patent, and the ’185 patent for the purpose of ad-
dressing the significance of Zircon’s investments” in each
of plant and equipment, labor and capital, and engineering
and research and development. Commission Opinion at
*26–27. That aggregation, the Commission held, “is prob-
lematic here where multiple patents and numerous domes-
tic products are at issue and where many of those domestic
industry products practice less than all of the asserted pa-
tents.” Id. at *28. In that setting, the Commission noted,
“aggregating investments in different domestic products
that practice different patents effectively precludes the
Commission from quantifying the amounts of the invest-
ments in each statutory category and determining the sig-
nificance of Zircon’s investments with respect to each of its
asserted patents.” Id. The Commission concluded that
“[g]iven the differences between the patents and covered
products in this case, Zircon cannot show the existence of
an industry in the United States relating to the article pro-
tected by the ’662 patent by including investments in
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ZIRCON CORP. v. ITC 11
articles protected only by the ’771 and ’185 patents and vice
versa.” Id. at *29.
The Commission summarized the flaw in Zircon’s
presentation as follows:
Per the plain language of section 337, Zircon was
required to establish the existence of a domestic in-
dustry through significant or substantial invest-
ments with respect to articles protected by the ’771
patent in order to establish a violation of section
337 based on infringement of that patent. So too it
was required to establish the existence of a domes-
tic industry through significant or substantial in-
vestments with respect to articles protected by the
’185 patent to show a violation based on that patent
and the existence of a domestic industry through
significant or substantial investments with respect
to articles protected by the ’662 patent to show a
violation based on that patent. But Zircon did not
do that. Instead, it aggregated its domestic indus-
try products without regard for whether or which
patents they practiced and then argued that a do-
mestic industry in all of its products exists. That
is not what section 337 requires, and it does not
provide the Commission with adequate infor-
mation to discern retrospectively whether Zircon
could have established a domestic industry for any
of its asserted patents under the proper legal
framework.
Commission Opinion at *29.
The Commission added that Zircon could have at-
tempted to establish a domestic industry based only on its
investments in articles that practice all of the asserted
claims but that Zircon had made no such effort. Commis-
sion Opinion at *31. In that regard, the Commission noted
that there are 14 domestic industry products that practice
all three asserted patents, but that “Zircon has not
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ZIRCON CORP. v. ITC 12
identified what portion of its investments are attributable
to those products and the Commission lacks sufficient in-
formation to perform such an allocation sua sponte.” Id.
This court’s precedent is consistent with the
Commission’s interpretation of section 337. In Interdigital
Communications, LLC v. International Trade Commission,
this court explained that to satisfy the domestic industry
requirement based on research and development activities
under section 337(a)(3)(C), the complainant must show
that those activities “pertain to products that are covered
by the patent that is being asserted.” 707 F.3d 1295, 1297–
98 (Fed. Cir. 2013); see also Hyosung, 926 F.3d at 1361
(explaining that the activities encompassed by section
337(a)(3) “must pertain to products covered by the asserted
patent”) (citation omitted); Motorola Mobility, LLC v. Int’l
Trade Comm’n, 737 F.3d 1345, 1351 (Fed. Cir. 2013) (“The
investments or employment must only be ‘with respect to
the articles protected by the patent’”).
In cases in which all the domestic industry products
practice all the asserted patents, it follows from the lan-
guage of section 337 and our case law that the complainant
could satisfy the economic prong as to all asserted patents
based on the entire product group. But in cases in which
the complainant’s products or groups of products each prac-
tice different patents, the complainant would need to es-
tablish separate domestic industries for each of those
different groups of products. See Certain Audio Digital-to-
Analog Converters & Prods. Containing Same, Inv. No.
337-TA-499, Initial Determination, 2004 WL 3121325, at
*61 (Nov. 15, 2004) (“Because complainant is asserting
[two patents], and the articles that practice said patents do
not overlap, complainant must demonstrate the existence
of two domestic industries”). Such a showing might be
made, in an appropriate case, without necessarily breaking
out investments on a per-patent basis, provided that suffi-
cient evidence is presented to persuade the Commission
that the domestic industry requirement is met for each
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ZIRCON CORP. v. ITC 13
patent. Hence, we agree with Zircon and the Commission
that that investments do not always need to be broken
down patent-by-patent.
Zircon argues that in a case such as this one, the Com-
mission’s analysis “should proceed on the basis that there
is a single industry which exploits the patents.” Zircon’s
Op. Br. at 59. Zircon cites several Commission cases that
purportedly support its position. See Certain Dynamic
Random Access Memories, Components Thereof & Prod.
Containing Same, Inv. No. 337-TA-242, USITC Pub. No.
2034, Comm’n Op., 1987 WL 450856, at *28 (Sept. 21,
1987) (“Certain DRAMs”); Certain Laser Bar Code Scan-
ners & Scan Engines, Components Thereof & Prods. Con-
taining Same, Inv. No. 337-TA-551, Ord. No. 25, 2006 WL
2222926, (July 17, 2006); Certain Elec. Imaging Devices,
Inv. No. 337-TA-850, Initial Determination, 2013 WL
5956227 (Sept. 30, 2013); Certain Integrated Circuit Chips,
Inv. No. 337-TA-859, Comm’n Op., 2014 WL 12796437
(Aug. 22, 2014); and Certain Ground Fault Circuit Inter-
rupters, Inv. No. 337-TA-739, Comm’n Op., 2012 WL
2394435 (June 8, 2012).
Most of those cases stand for the undisputed principle
that, when assessing a complainant’s expenditures for pur-
poses of the economic prong, it is permissible to group of
different products together if they are all protected by the
same patent. See Certain Elec. Imaging Devices, 2013 WL
5956227, at *105 (expenses on research and development
of a specific article need not “be broken down into the
amount related to any specific patents” so long as the ac-
tivities are directed towards articles that incorporate the
patented technology); Certain Integrated Circuit Chips,
2014 WL 12796437, at *24 (“[N]o patent-by-patent alloca-
tion is required for research and development investment
under subparagraph (C).”); see also Certain Ground Fault
Circuit Interrupters, 2012 WL 2394435, at *51 (“Although
product groupings can be a convenient way of organizing
multiple products and multiple asserted patents, the
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ZIRCON CORP. v. ITC 14
central inquiry is whether [the complainant] can establish
domestic industry for at least one product practiced under
each of the asserted patents . . . .”). Those cases are not
pertinent to the issue in this case, because the products
that Zircon sought to aggregate were not all protected by
the same patent or patents.4
Thus, even though Zircon might have been able to show
the substantial or significant investment requirement was
met by its investment in the 14 products that practice all
three asserted patents, Zircon provided no way for the
Commission to assess the significance of Zircon’s invest-
ment in that product group because Zircon presented its
investments in the aggregate for all 53 products, which
practiced multiple different combinations of patents. As
the Commission explained,
aggregating investments in different domestic
products that practice different patents effectively
precludes the Commission from quantifying the
4 Zircon cites the ALJ’s initial determination in Certain
Electrical Imaging Devices as support for its position. Zir-
con Op. Br. at 58 (citing 2013 WL 5956227, at *105). On
review, however, the Commission in that case found the
complainant’s investments in labor and capital to be signif-
icant based on “individual head counts for Apple engineers
working on research and development” for the products
practicing all patents. 2018 WL 11201935, at *55. Zircon
also cites Certain Laser Bar Code Scanners for the princi-
ple that a complainant “can establish domestic industry for
at least one product practiced under each of the asserted pa-
tents, irrespective of any grouping or format presented in
its Motion.” 2006 WL 2222926 at *5 (emphasis in original).
While that principle is correct, Zircon has failed to estab-
lish that its investment in even one product practicing an
asserted patent is significant, because it did not disaggre-
gate its expenditures across its 53 products.
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ZIRCON CORP. v. ITC 15
amounts of the investments in each statutory cate-
gory and determining the significance of Zircon's
investments with respect each of its asserted pa-
tents. By way of example, 90% of Zircon's invest-
ments in its domestic industry products could be
attributable to products that practice the ’662 pa-
tent, and only 10% could be attributable to prod-
ucts that practice the ’771 and ’185 patents. The
opposite could also be true, or the distribution
could be fifty-fifty.
Commission Opinion at *28.
The only case on which Zircon relies that stands for the
principle that where there is substantial overlap between
domestic industry products practicing multiple asserted
patents, the complainant can rely on its expenditures re-
lated to those products to establish a single domestic indus-
try is Certain DRAMs. In that case, the complainant was
asserting five patents, and the domestic industry products
(DRAMs of different densities) each practiced one or more
of the asserted patents. 1987 WL 450856 at *28. The ALJ
presiding over the investigation required that the com-
plainant show a separate industry for each DRAM density.
Id. at *27. On review, the Commission explained that the
complainant need establish only one domestic industry be-
cause “exploitation of all five valid patents . . . result[ed] in
the production of a single commercial product, DRAMs.”
Id. at *28. The Commission’s finding rested on its conclu-
sion that there was “substantial overlap among the differ-
ent generations of DRAMs produced in accordance with one
or another of the patents in controversy.” Id.
Zircon argues that the present case follows the same
pattern because there is substantial overlap in its domestic
industry products (35 of the 53 domestic industry products
practice two or more of the asserted patents) and exploita-
tion of all three asserted patents results in the production
of electronic stud finders. The Commission rejected that
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ZIRCON CORP. v. ITC 16
argument, finding that “the reasoning of DRAMs is inap-
plicable here where there is no record to show ‘substantial
overlap’ of the articles that practice each of Zircon's as-
serted patents” because less than a quarter of the domestic
industry products practice all the asserted patents. Com-
mission Opinion at *31.
Certain DRAMs has little bearing on the present case,
mainly because the language of section 337 was substan-
tially amended in 1988, one year after the Commission’s
opinion in that case. Prior to the amendment, section
337(a) read as follows:
Unfair methods of competition and unfair acts in
the importation of articles into the United States,
or in their sale by the owner, importer, consignee,
or agent of either, the effect or tendency of which is
to destroy or substantially injure an industry, effi-
ciently and economically operated, in the United
States, or to prevent the establishment of such an
industry, or to restrain or monopolize trade and
commerce in the United States, are declared un-
lawful . . . .
19 U.S.C. § 1337(a) (1982). Applying that statutory lan-
guage, the Commission in Certain DRAMs determined
there was one industry in the subject DRAMs and assessed
whether that industry operated efficiently and economi-
cally in the United States. 1987 WL 450856, at *31.
The 1988 amendments added the language of section
337(a)(1)(B)–(D), including the language of subsection
(a)(2), which defines the industry as one “relating to the
articles protected by the patent,” and subsection (a)(3),
which defines the activities demonstrating that a domestic
industry exists. Omnibus Trade and Competitiveness Act
of 1988, Pub. L. No. 100-418, § 1342, 102 Stat. 1107,
1212–13 (1988). It is the language of section 337(a)(2) and
(3) that this court analyzed in the post-amendment case
law and that the Commission has relied upon to require a
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ZIRCON CORP. v. ITC 17
complainant to allocate its expenditures to specific prod-
ucts or product groups. Certain DRAMs therefore offers
little guidance as to how to assess domestic industry under
the current version of section 337.
Furthermore, Certain DRAMs is distinguishable.
Whereas all of the DRAM products at issue there were
manufactured “us[ing] many of the same processes and
equipment” as one another and differed only in their
storage capacity, 1987 WL 450856 at *28 n.151, here the
various patents relate to disparate technologies (e.g., hand
grips and recalibration capability).
In sum, it was Zircon’s burden to prove the existence of
a domestic industry relating to articles protected by each
of its patents. To meet that burden, Zircon needed to show
that its investments in plant and equipment, labor or cap-
ital, and/or research and development, with respect to ar-
ticles protected by each patent, were significant or
substantial. See 19 U.S.C. § 1337(a)(3). Thus, Zircon was
required to identify, in some manner, how much of its in-
vestment in each statutory category was attributable to
each group of products. See John Mezzalingua Assocs., Inc.
v. Int’l Trade Comm’n, 660 F.3d 1322, 1331 (Fed. Cir.
2011).5 The Commission did not err in finding that Zircon
failed to meet that burden when it relied on aggregated ev-
idence of its investments in all domestic industry products
5 At oral argument, Zircon suggested that the Com-
mission could have determined the revenue attributable to
each product each year based on Commission Exhibit 28C.
Exhibit 28C appears to be a summary of Zircon’s total rev-
enues attributable to all domestic industry products, ra-
ther than product-by-product. J. App. 6564. Zircon has not
shown any error on the part of the Commission in not find-
ing that this exhibit satisfied Zircon’s burden to identify
how much of its investments related to articles protected by
each patent.
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ZIRCON CORP. v. ITC 18
without allocating those investments among products or
product groups relating to each asserted patent, or product
groups relating to all the asserted patents.
B
Zircon argues that even if such a breakdown were re-
quired, a revenue-based patent-by-patent breakdown of its
pertinent expenditures was properly before the Commis-
sion and that the Commission erred by refusing to consider
that evidence. According to Zircon, the breakdown ap-
peared in a declaration by Zircon’s President, Chief Oper-
ating Officer, and Chief Financial Officer Ronald Bourque,
which was attached to Zircon’s initial complaint. See J.
App. 1046–56. Zircon contends the patent-by-patent allo-
cation of expenditures was properly before both the ALJ
and the Commission because the declaration was attached
to Zircon’s complaint. Zircon points out that Order No. 41
in the case specifically stated that “[p]ursuant to Commis-
sion Rule 210.38, the pleadings in this investigation are al-
ready part of the record and do not need to be separately
admitted as hearing exhibits.” See J. App. 1271. In addi-
tion, Zircon argues that the declaration was cited in Mr.
Bourque’s witness statement, which itself was admitted as
evidence. See J. App. 14736–37, Q/A 122–23.
The Commission responds that Zircon cannot rely on
Mr. Bourque’s declaration before this court because Zircon
did not appeal the ALJ’s grant of a motion in limine exclud-
ing Mr. Bourque’s declaration, nor did it appeal the Com-
mission’s finding that Zircon abandoned its right to rely on
the allocation in Mr. Bourque’s declaration based on Zir-
con’s failure to raise that issue before the ALJ. See J. App.
1258–59 (Order No. 37 on motion in limine); Commission
Opinion at *29 n.25.
The patent-by-patent allocation of Zircon’s expendi-
tures was not properly before the Commission, and its ex-
clusion is therefore not part of the appeal before us. In
Order No. 37, the ALJ prohibited the use of Mr. Bourque’s
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ZIRCON CORP. v. ITC 19
declaration as substantive evidence. See J. App. 1258. Zir-
con did not rely on the declaration before the ALJ, nor could
it have, given that it did not contest Order No. 37. Zircon
did not appeal Order No. 37, but rather argued to the Com-
mission, as it now argues to us, that the declaration was
properly in the record pursuant to Order No. 41. As the
Commission explained in its opinion, however, Order No.
41 by its terms refers only to the administrative record.
Commission Opinion at *29 n.25. Compare 19 C.F.R.
§ 210.38 (regulations related to the administrative record),
with 19 C.F.R. § 210.37 (regulations related to evidence).
It is thus irrelevant that Order No. 41 postdates Order No.
37, because Order No. 41 did not reverse the ALJ’s exclu-
sion of Mr. Bourque’s declaration as substantive evidence.
Zircon is also incorrect that the Bourque declaration
must be deemed to have been admitted because it was cited
in Mr. Bourque’s witness statement. In the cited portion of
Mr. Bourque’s witness statement, Mr. Bourque was pre-
sented with a supplement to his declaration originally
numbered CX-0633C. See J. App. 15687–88; see also J.
App. 14736–37, Q/A 122–23. The ALJ excluded both the
original declaration (CX-0021C) and the supplement
(CX-0633C) from evidence under Order No. 37 but permit-
ted Zircon to renumber excluded exhibits as demonstra-
tives with CDX designations. See J. App. 1259. Zircon
appears to have followed that direction because in Mr.
Bourque’s witness statement, Mr. Bourque was asked
about the supplement as CDX-0025C. J. App. 14736–37,
Q/A 122. It is therefore apparent that the supplement was
not attached to Mr. Bourque’s witness statement as evi-
dence, but was merely referred to as a demonstrative. Mr.
Bourque’s witness statement provides no additional evi-
dence on this issue because in his witness statement Mr.
Bourque only affirmed that he received a true and accurate
copy of his declaration and did not elaborate on any of the
details in his declaration.
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ZIRCON CORP. v. ITC 20
C
The sole exception to Zircon’s aggregated approach to
establishing domestic industry is set forth in Zircon’s argu-
ment that its research and development expenditures on
the chip used in its devices were substantial under 19
U.S.C. § 1337(a)(3)(C). The ALJ found that the invest-
ments in developing the chip can reasonably be character-
ized as investments in articles protected by the ’662 patent.
Initial Determination at *93. However, the ALJ found the
evidence on which Zircon relied to attribute a portion of its
overall research and development investments to the chip
to be unreliable. Id. In the witness statement submitted
to the ALJ and discussed above, Mr. Bourque testified that
the chip “accounted for [a specific portion] of Zircon’s an-
nual [research and development] spending since 2010.” J.
App. 14735, Q/A 115. The ALJ found that part of Mr. Bour-
que’s testimony to lack both documentary support and any
explanation for how Mr. Bourque arrived at the recited por-
tion. Initial Determination at *93; see J. App. 14734–35,
Q/A 115. The ALJ also did not credit expert witness Walter
Bratic’s testimony on that issue because Mr. Bratic relied
exclusively on Mr. Bourque’s testimony and did not review
any documents to support his testimony. Initial Determi-
nation at *93; J. App. 1401, ll. 6–11; see also id. at 14398–
99, Q/A 39–40. The Commission found no error in the
ALJ’s determination and adopted the ALJ’s finding on that
issue. Commission Opinion at *32.
Substantial evidence supports the Commission’s find-
ing that Zircon failed to meet its burden to prove its invest-
ments in the chip were substantial. The ALJ did not err by
finding that Mr. Bourque’s unelaborated statement regard-
ing the portion of the company’s research and development
funds that were devoted to developing the chip was not suf-
ficient to show that Zircon’s investments in the chip were
substantial. Initial Determination at *93.
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ZIRCON CORP. v. ITC 21
Zircon argues that the Commission ignored its own
precedents, which require it to treat the complainant’s es-
timate of its investments as reliable absent “specific per-
suasive evidence” to the contrary. See Certain Solid State
Storage Drives, Stacked Elecs. Components, & Prods. Con-
taining Same (“Solid State Storage Drives”), Inv. No. 337-
TA-1097, Comm’n Op., 2018 WL 4300500, at *13 (June 29,
2018); Certain LED Lighting Devices, LED Power Supplies,
& Components Thereof (“LED Lighting Devices”), Inv. No.
337-TA-1081, Comm’n Op., 2018 WL 7350925, at *91 (Dec.
19, 2018). But neither of the cases that Zircon cites sup-
ports the proposition that Zircon urges on us.
In Solid State Storage Drives, the Commission stated
that there is no bar to crediting “sworn witness testimony
directed to the domestic industry requirement . . . without
further corroboration by underlying documentation.” 2018
WL 4300500, at *13. In that case, however, the relevant
estimates were corroborated by other employees, and the
opposing party provided no specific evidence to the con-
trary. Id. In this case, by contrast, the ALJ found no evi-
dence, documentary or otherwise, to corroborate Mr.
Bourque’s estimate. Initial Determination at *93.
In LED Lighting Devices, the Commission cited the rel-
evant language from Solid State Storage Drives and fur-
ther explained that written records are not required to
permit the Commission to credit testimony on the domestic
industry requirement. 2018 WL 7350925 at *91. But in
LED Lighting Devices, the witness in question explained
how he derived his estimate. Id. In this case, Mr. Bourque
provided no explanation of how he reached the particular
figure in his witness statement, and at the evidentiary
hearing before the ALJ, Mr. Bourque admitted that he
merely “estimated” that figure. Initial Determination at
*93.
Zircon also argues that the ALJ and the Commission
erred in deeming Mr. Bourque and Mr. Bratic’s testimony
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ZIRCON CORP. v. ITC 22
unreliable without addressing technical reports that cor-
roborated Mr. Bourque’s testimony regarding activity oc-
curring on Zircon’s chip. See J. App. 10055–77, 10091–257.
While those documents showed that Zircon was conducting
research and development on the chip, they provided no ba-
sis for estimating the amount of funds devoted to that pur-
pose.
The ALJ’s credibility determinations and weighing of
the evidence are entitled to great weight, and there is no
reason on this record to override those determinations. See
Bio-Rad Lab’ys, Inc. v. Int’l Trade Comm’n, 998 F.3d 1320,
1336 (Fed. Cir. 2021) (“It is not within our purview to re-
weigh the evidence or to question the ALJ’s credibility de-
terminations.”). We therefore decline Zircon’s invitation to
reverse the Commission’s finding that the evidence was in-
sufficient to show that Zircon’s investments in the chip
were substantial.
III
Zircon also appealed from the Commission’s infringe-
ment and invalidity rulings regarding the asserted claims
of the ’662, ’771, and ’185 patents. Because we have upheld
the Commission’s ruling on the domestic industry issue, it
is unnecessary for us to reach Zircon’s challenges to the
Commission’s infringement and invalidity rulings.
AFFIRMED
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