The ITC appeal is very important. Do not be mislead in thinking that only the NDCA is important.
As has been mentioned earlier, ITC determinations may or may not be given deference by federal courts. In Texas Instruments v. Cypress Semiconductor Corp., 90 F.3d 1558 (Fed. Cir. 1996), the Federal Circuit said that the district court can attribute whatever preclusive value to the prior ITC decision as it considers justified. Grewal clearly decided it was to be none.
However, the ITC appeal is very important. The main reason being that although the ITC decision is not given deference by the CAFC, ITC findings of fact are given greater deference regarding factual issues on appeal. In other words, the claim constructon that is used in the ITC, if not overturned, will be given deference in a CAFC hearing. That's not to say the CAFC is beholden to the ITC, but it makes things more difficult for Patriot.
The event that enabled the above was a 1998 ruling in Cybor Corp. v. FAS Techs. Inc., which held that district court claim construction rulings are reviewed on appeal entirely de novo (without deference). That case is being revisited by the CAFC to determine whether it should be overturned. The ruling is expected towards the end of this year.
At this point, however, we live with what was determined in the Cybor ruling. The ITC appeal is therefore very important, like it or not.
