Is U.S. Customs Equipped to Police Patent Infringement?

The U.S. Bureau of Customs and Border Protection fails to appropriately police imports for patent infringement, according to a recent lawsuit by Microsoft Corp. The company alleges that the agency is allowing Motorola Mobility Inc. to import devices that infringe certain Microsoft patents in violation of an order from the U.S. International Trade Commission.

Pursuant to a May 2012 ITC order, Motorola Mobility, now owned by Google, infringed a Microsoft patent for generating and synchronizing calendar items. The order banned any infringing device from entering the United States.

However, according to Microsoft’s complaint, the U.S. Bureau of Customs and Border Protection (CBP) continues to allow infringing devices into the country. “The CBP has allowed the important of infringing devices based on claims that Microsoft made on an ex parte basis, and that CBP has accepted without providing Microsoft with notice of those claims, much less an opportunity to address them,” the complaint alleges.

“Most egregiously, CBP has allowed Motorola to relitigate—in secret—issues that Motorola lost before the Commission, and has granted Motorola precisely the relief that the Commission expressly refused to grant after full, fair, and open litigation,” Microsoft further argues. Meanwhile, Google maintains that Microsoft is seeking to impermissibly expand the scope of the ITC order.

While Microsoft’s allegations against the CBP must be decided in court, the case raises the larger question of whether the agency is equipped to deal with the recent influx of patent infringement cases. As former ITC chairman, Deanna Tanner Okun, told Reuters, the customs bureau may lack the expertise to enforce the orders. “Problems have increased. The system is outdated,” she said. “They’re using practices and procedures that are 20 years old.”

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