Any person adversely affected by a final determination of the Commission under subsection (d), (e), (f), or (g) of [section 1337] may appeal such determination . . . to the United States Court of Appeals for the Federal Circuit. . . . This language has been interpreted as requiring a "final determination decision on the merits, excluding or refusing to exclude articles from `entry'" under section 1337(d), (e), (f) or (g). Block v. U.S. Int'l Trade Comm'n, 777 F.2d 1568, 1571, 228 USPQ 37, 38 (Fed. Cir. 1985) (emphasis in original). Thus, both the Commission and Chugai have filed motions to dismiss on the ground that this court is without jurisdiction to review the Commission's April 10, 1989 Order, since that Order constituted a dismissal for lack of subject matter jurisdiction and not a final determination on the merits.
Interpreting 19 U.S.C. § 1337(c), we recognized that § 1337(c)"has been interpreted as requiring a ‘final determination decision on the merits , excluding or refusing to exclude articles from entry’ under section 1337(d), (e), (f) or (g)." Id. (quoting Block v. ITC , 777 F.2d 1568, 1571 (Fed. Cir. 1985) ). But instead of adopting the rigid approach Intervenors argue for in this case, we concluded that the Commission's decision was "intrinsically a final determination, i.e., a determination on the merits ," thus making it appealable under § 1295(a)(6).
Although the Commission took no position on the substance of the ALJ's findings, it issued an order that finally terminated the investigation regarding the '867 patent and denied vacatur of the ALJ's decision. The Commission cites Import Motors, Ltd. v. Int'l Trade Comm'n, 530 F.2d 940 (CCPA 1976), and Block v. Int'l Trade Comm'n, 777 F.2d 1568, 1572 (Fed. Cir. 1985), in support of its no-jurisdiction argument, but neither case involved a situation similar to the present one: Import Motors involved a preliminary denial of participation to certain persons who could intervene later in the proceeding, 530 F.2d at 946; and Block involved an abatement of proceedings and vacatur of the ALJ's initial determination because of changes in the patent claims, without prejudice to initiation of a new proceeding involving the new claims, 777 F.2d at 1571-72. --------
Subsections (f) and (g) were added later. In Block v. U.S. International Trade Commission, 777 F.2d 1568 (Fed.Cir.1985), this court applied the framework from Import Motors in an appeal from an ITC order terminating an investigation as “abated” because the patent claims that formed the basis for the alleged § 1337 violation were substantially amended during reexamination proceedings in the United States Patent and Trademark Office. In finding that the appellant had no right to appeal, we held that the ITC's order was not intrinsically a final determination under subsections (d), (e), or (f) because “the ITC did not rule on the merits” and thus did not “exclude or refuse to exclude articles from entry under 19 U.S.C. § 1337(d), (e), or (f).”
Scripps Clinic Research Foundation v. Genentech, Inc., 927 F.2d 1565, 18 USPQ2d 1001 (Fed. Cir. 1991) (aff'g in part, rev'g in part). The district court herein also relied on an opinion of the International Trade Commission, in In re Certain Apparatus for Flow Injection Analysis, 226 USPQ 236 (United States Int'l Trade Comm. 1984), appeal dismissed sub nom. Block v. United States Int'l Trade Comm., 777 F.2d 1568, 228 USPQ 37 (Fed. Cir. 1985) (vacating the Administrative Law Judge's determination that claims of an original and reexamined patent were "identical"). The Commission had held that amendment following a rejection on prior art "clearly implies a change in coverage, i.e., a substantive change". 226 USPQ at 239.
Subsection (d) deals with orders of the Commission decid- ing whether or not to exclude articles from entry into the United States as a result of an investigation. By its terms, § 1337(c) requires: (1) that the Commission render a determination "under subsection (d)," namely, an "administrative decision . . . excluding or refusing to exclude articles from entry," Block v. Int'l Trade Comm'n, 777 F.2d 1568, 1571 (Fed. Cir. 1985); (2) that exclusion determination is the "final determination of the Commission"; and (3) the person seeking appeal is "adversely affected" by that final determination. Those requirements are not met here.
Id. at 1135. In Block v. U.S. International Trade Commission, 777 F.2d 1568 (Fed.Cir.1985) this court summarized the criteria for purposes of issue preclusion: One important factor that is considered in determining the finality of a decision for the purposes of preclusion is whether the decision was ever subject to appeal.
Under 19 U.S.C. § 1337(c), this court can only review Commission determinations that are "final determination on the merits, excluding or refusing to exclude articles from `entry"'. Block v. U.S. Intl Trade Comm'n, 777 F.2d 1568, 1571 (Fed. Cir 1985) (emphasis in original). Because Rambus has not shown that 2010-1366 is an appeal from a final determination on the merits pursuant to § 1337(c), we conclude that appeal 2010-1366 is premature and we dismiss for lack of jurisdiction.
We agree with San Huan and the Commission. "A final determination is `a final administrative decision on the merits, excluding or refusing to exclude articles from entry'" under 19 U.S.C. §(s) 1337(d), (e), (f), or (g) (1994). Block v. United States Int'l Trade Comm'n, 777 F.2d 1568, 1571, 228 USPQ 37, 38 (Fed. Cir. 1985) (quoting Import Motors, Ltd. v. United States Int'l Trade Comm'n, 530 F.2d 940, 944, 188 USPQ 490, 494 (CCPA 1976)). Because formal enforcement proceedings are ongoing, San Huan's appeal no. 97-1411 is not an appeal from a final determination.
See Fletcher v. Atex, Inc., 68 F.3d 1451, 1458 (2d Cir. 1995) ("Under New York law, a party has not had a full and fair opportunity to litigate an issue if it has had no opportunity to appeal the adverse finding."); Gray v. Lacke, 885 F.2d 399, 406 (7th Cir. 1989) ("As our court has recognized on prior occasions, a `full and fair opportunity to litigate' includes the right to appeal an adverse decision."), cert. denied, 494 U.S. 1029 (1990); Disher v. Information Resources, Inc., 873 F.2d 136, 139 (7th Cir. 1989) (noting that "unless [a judgment] is appealable the defendant was denied an opportunity to contest it fully in the previous litigation"); Block v. United States Int'l Trade Comm'n, 777 F.2d 1568, 1572 (Fed. Cir. 1985) (concluding that an order is not preclusive when "there has been no opportunity for appellate review"); Luben Indus., Inc. v. United States, 707 F.2d 1037, 1040 (9th Cir. 1983) ("[W]e are convinced that the Government did not have a `full and fair opportunity to litigate' its claim because it could not appeal the interlocutory memorandum. . . ."); Williams v. Weber, 905 F. Supp. 1502, 1509 (D. Kan. 1995) ("Before the jury's final judgment, any appeal of the state judge's ruling on the motion to suppress or on the motion to acquit would have been unripe; after final judgment was entered, any appeal on the issue of probable cause was rendered moot. Thus, plaintiff did not have a full and fair opportunity to litigate the probable cause issue, and collateral estoppel should not be applied."); Henry v. Ryan, 775 F. Supp. 247, 252 (N. D. Ill. 1991) ("In similar situations where a defendant's opportunity for appellate review has been foreclosed, Illinois courts have excepted the litigant fro