The U.S. Court of Appeals for the Federal Circuit recently dismissed a portion of an appeal by Crocs Inc. from an adverse determination in the International Trade Commission as untimely.1
The case is significant because it confirmed that the statutory scheme for appealing ITC determinations sets two different deadlines to file an appeal depending on whether the ITC finds a violation or not.
The case establishes that the Federal Circuit assesses finality of determinations by the ITC on a violation-by-violation basis, and not on an investigation-by-investigation basis or a paper-by-paper basis.
Although somewhat counterintuitive with the Federal Circuit's approach to district court appeals, this decision offers a powerful reminder that the ITC is a creature of statute, and practitioners would do well to interpret those statutes conservatively, particularly when calculating deadlines.
Background of the Investigation
Crocs sought an investigation of numerous respondents in the ITC for violation of its rights in U.S. Trademark Nos. 5,149,328 and 5,273,875, which cover certain features of Crocs' classic clog shoes.2 Several respondents defaulted, additional respondents were dismissed from the investigation pursuant to settlement agreements or consent orders, and three respondents participated in an evidentiary hearing in September 2022.3
In January 2023, Administrative Law Judge Bryan F. Moore issued an initial determination finding no violation of Section 337. Specifically, Judge Moore determined that Crocs had failed to prove a number of elements of trademark infringement against the respondents that participated in the evidentiary hearing.4 Additionally, Judge Moore found that Crocs had waived its infringement contentions against the defaulting respondents.5
In April 2023, the ITC determined to review the initial determination in part, and on Sept. 14, 2023, issued its notice of final determination and the commission opinion.
The final determination was a mixed result for Crocs. First, the ITC affirmed Judge Moore's finding of no violation of Section 337 with respect to the respondents that participated in the evidentiary hearing.6 Second, the ITC reversed Judge Moore's finding with respect to the defaulting respondents, finding that the statute required issuance of a limited exclusion order against the defaulting respondents.7
On Dec. 22, 2023, Crocs filed a single notice of appeal challenging both the finding of no violation and the ITC's determination to issue only limited exclusion orders against the defaulting respondents, and not a general exclusion order.8
The Federal Circuit's Opinion
The Federal Circuit dismissed Crocs' appeal of the ITC's finding of no violation of Section 337. Under Title 19 of the U.S. Code, Section 1337(c), a person adversely affected by a final determination must file a notice of appeal "within 60 days after the determination becomes final."
Crocs argued that because the ITC found a violation against the defaulting respondents, that the ITC's entire final determination did not become final for purposes of appeal until after the expiration of the statutory 60-day presidential review period.
The Federal Circuit disagreed. According to the court, the determination with respect to the respondents participating in the evidentiary hearing became final for purposes of appeal on Sept. 14, 2023, when the ITC issued its final determination.
This conclusion was dictated by the language of Section 1337(j), which specifies that a presidential review period occurs only "if the Commission determines that there is a
violation of [Section 337]."9
Because the determination with respect to the participating respondents was no violation, there was no statutory presidential review period for that determination, and the determination was immediately final for purposes of appeal.
Thus, the court said, the deadline to appeal the determination of no violation expired on Nov. 13, 2023, over a month before Crocs filed its notice of appeal.
District Court Appeals
The result in Crocs may appear to be somewhat at odds with the Federal Circuit's approach in appeals from district court decisions.
For example, in appeals from district courts, the Federal Circuit routinely holds that all issues must be final before it has jurisdiction under Title 28 of the U.S. Code, Section
1295(a)(1). This is commonly known as the final judgments rule, under which parties may only appeal final decisions of a district court that end the litigation on the merits, and leave nothing for the court to do but execute the judgment.10
For example, in Nystrom v. TREX Co. Inc., decided by the Federal Circuit in 2003, the U.S. District Court for the Eastern District of Virginia granted summary judgment of noninfringement and invalidity of certain patent claims. The district court, however, had stayed certain counterclaims related to invalidity and unenforceability.11
The Federal Circuit held that "[i]f a case is not fully adjudicated as to all claims for all parties and there is no express determination that there is no just reason for delay or express direction for entry of judgment as to fewer than all of the parties or claims, there is no 'final decision' under 28 U.S.C. § 1295(a)(1) and therefore no jurisdiction."12
As another example, in Pause Technology LLC v. TiVo Inc. in 2005, the Federal Circuit noted that "By requiring parties to raise all claims of error in a single appeal following final judgment on the merits, like its counterpart § 1291, forbid[s] piecemeal disposition on appeal of what for practical purposes is a single controversy."13
Similar to Nystrom, Pause Technology concerned a situation in which the district court left certain issues unresolved. Specifically, the U.S. District Court for the District of Massachusetts granted summary judgment of noninfringement, but did not resolve an invalidity counterclaim before terminating the case on the docket sheet.14
The Federal Circuit determined that the presence of the unresolved invalidity counterclaim deprived it of jurisdiction under the final judgments rule.15
The Federal Circuit's treatment of appeals from district court final decisions under the final judgments rule appears to be directly at odds with its decision in Crocs, which appears to mandate piecemeal appeals in mixed result ITC investigations.
Takeaways
The Federal Circuit has not yet had occasion to reconcile the final judgments rule with the approach taken in Crocs.
Regardless of whether or when that reconciliation comes, practitioners would do well not to trust their presuppositions regarding appeals deadlines and to take the time to research the applicable case law interpreting any statutes regarding such deadlines.
In light of the potentially severe consequences of missing an appeal deadline, it would be wise to map out all foreseeable deadlines, depending on rule and statutory interpretation, and to adopt a conservative approach to deadlines.
1 Crocs, Inc. v. Int'l Trade Comm'n , No. 24-1300, slip op. (Fed. Cir. Jan. 8, 2026).
2 Id. at 1.
3 Id. at 3.
4 Id.
5 Id.
6 Id.
7 Id. at 3-4.
8 Id. at 4.
9 Id. at 6.
10 Nystrom v. TREX Co. Inc. , 339 F.3d 1347, 1350 (Fed. Cir. 2003).
11 Id. at 1349.
12 Id. at 1350.
13 Pause Tech. LLC v. TiVo Inc. , 401 F.3d 1290, 1292-93 (Fed. Cir. 2005) (internal quotes and citations omitted).
14 Id. at 1291.
15 Id. at 1295.
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