with whom Baldwin, J. joins, concurring with respect to Appeal No. 79-35 and dissenting with respect to Appeal No. 80-4.
By affirming that the Tong Seae process would not, if practiced in the United States, infringe U.S. Patent No. 3,416,984 owned by the complainant Sealed Air, this court has no alternative but to vacate the order below and remand for the ITC’s determination of violation of 19 U.S.C. 1337 based on the evidence with respect to the processes of others. An exclusion order must be supported by factual findings based on reliable, probative, and substantial evidence (5 U.S.C. 556(d)) which establish the material facts required under 19 U.S.C. 1337 for issuance of the order. In this case, the order is unsupported by the ITC’s analysis and reliance on any evidence. In violation of the directive of the Supreme Court, every precedent as to the scope of appellate review, and without a glance at the Administrative Procedure Act, the majority substitutes its own findings to uphold the order. 1 respectfully dissent.
The ITC based its determination that there was a violation of 19 U.S.C. 1337 (and 1337a) in the importation of Unipak’s products on findings that it had in personam jurisdiction over Unipak, a company located in the British Crown Colony of Hong Kong, which was sent a notice of investigation and complaint by mail, and that Unipak de*109faulted by failing to answer the complaint and refused to participate in discovery. Unipak challenges the determination of violation based on these findings.
The majority holds in personam jurisdiction over Unipak is unnecessary for the issuance of an exclusion order against its products. Disregarding the ITC’s findings, the majority makes its own by relying ambiguously on Unipak’s default, Unipak’s arrogance and intransigence, and interjecting its own review of the evidence concerning the Unipak process to show a prima facie case of infringement.1 SEC v. Chenery Corp., 318 U.S. 80 (1943), relied upon by the majority, prohibits rather than endorses the substitution of the court’s findings to sustain the order below.
Unipak’s default and intransigence
On June 26, 1978, the ITC instituted an investigation relating to multicellular plastic film used for swimming pool covers based on a complaint filed by Sealed Air, a U.S. corporation, on May 12, 1978, which named two domestic importers (Darlington and Polybubble) and three foreign manufacturers, Tong Seae (Taiwan), Conform (New Zealand), and Unipak (Hong Kong) as respondents. On June 29, 1978, the ITC sent notices of investigation with copies of the subject complaint to all named respondents. Answers were filed by all except Unipak. A receipt initialled by some unknown recipient was returned to the ITC, which indicates acceptance of the mailing to Unipak, on July 6, 1978. Unipak denies that it received these documents and alleges that the correspondence was misaddressed.
In any event, Unipak acknowledges receiving interrogatories from counsel for Sealed Air shortly thereafter and a copy of Sealed Air’s “Discovery Statement.”
On August 3, 1978, Unipak responded to Sealed Air with copies to all other named respondents and to appropriate persons in the IIC and other Government agencies. Unipak acknowledged receiving Sealed Air’s interrogatories but denied receiving the complaint from the ITC. It questioned the authority of the ITC outside the United States. It advised that requests concerning the investigation must be processed through the Hong Kong courts. It objected to the interrogatories as needlessly long, detailed and in many cases irrelevant and refused to disclose confidential information in writing. It offered to give testimoBy to the ITC provided certain matters were treated confidentially and its expenses were guaranteed. It denied the allegations of the complaint totally, and reserved its right to continue exportation of products to the U.S.A. Unipak further advised that *110Polybubble (a named respondent/importer) was under the duty to defend Unipak against all claims arising out of the importation of Unipak’s products into the United States.
Sealed Air’s counsel did not reply to this letter. However, on August 31, 1978, the attorney for the ITC undertook to do so, enclosing the complaint and a copy of the ITC rules. He advised that there were no motions regarding discovery; that Sealed Air had stated its intentions were to inspect the facilities of the foreign respondents in order to determine whether or not there was infringement of the subject patent and proposed to use an independent technical expert, qualified under a protective order in effect, to analyze technical confidential data.
He further advised that “there is presently pending a motion for default against your firm dated August 14, 1978, pursuant to rule 210.21(d) for failure to file a response to the complaint.” 2
On October 15, 1978, Unipak acknowledged receipt (on Oct. 12, 1978) of the August 31 letter from ITC’s counsel, as well as receipt in the interim of the first mailing. Unipak continued to protest the jurisdiction of the ITC and the charge that it used the Sealed Air process in its three layer film, objected to any finding that it was in default, and again offered to cooperate in the investigation through the Hong Kong courts or before the ITC if its expenses were paid.3
On December 7,1978, the administrative law judge (ALJ) made the following findings:
Motion No. 54-4S granted to the extent that the following findings are made:
1. The Commission has jurisdiction over Unipak.
2. Unipak has failed to file a response to the complaint within the time provided for in rule 21(a) of the Commission’s rules, and is therefore found to be in default under rule 21(d). Unipak’s failure to file a response is deemed to constitute a waiver of its right to appear and contest the allegations of the complaint and of the notice of investigation.. Without further notice to Unipak, the facts may be found to be as alleged in the complaint and notice of investigation, and a iecommended determination may be made containing such findings.
Further findings and a recommended decision will be reserved, so that the findings relating to Unipak will not be inconsistent with the evidentiary record made in this case.
The ultimate findings by the ALJ were that the subject patent was invalid and there was, accordingly, no violation in the importation of *111multicellular plastic film into the United States, but that if the patent were valid, Unipak and another foreign manufacturer, Conform, would be in violation of 19 U.S.C. 1337 by default.
The Commission on June 29, 1979, reached a contrary conclusion as to the validity of the patent. After review of an extensive record developed by Sealed Air and Tong Seae, the Commission then determined that the extrusion process practiced by Tong Seae for making multicellular plastic film did not infringe the process covered by claims 1 and 2 of Sealed Air’s patent which utilizes sheets of plastic as the starting material. Having found U.S. Patent 3,416,984 valid but not infringed by the Tong Seae process, the Commission relied upon the nonparticipation by Unipak and Conform for its exclusion order, making the following findings:
Specifically we find that (1) claims 1 and 2 of the ’984 patent have not been shown to be invalid, (2) the processes used by respondents Conform and Unipak to manufacture multicellular plastic film abroad would, if practiced in the United States, infringe claims 1 and 2 of the ’984 patent, (3) the process used by-respondent Tong Seae to manufacture multicellular plastic film abroad would not, if practiced in the United States, infringe claims 1 and 2 of the ’984 patent, and (4) the unauthorized importation into and subsequent sale in the United States by respondents Polybubble and Peter Darlington of multicellular plastic film manufactured abroad by Conform and Unipak has the tendency to injure substantially an efficiently and economically operated domestic industry. [Footnote omitted.]
These findings are explained in the opinion as follows:
Ij.. The Conform and Unipak processes infringe
The ALJ recommended that the processes employed by Conform and Unipak in manufacturing multicellular plastic film be found to infringe claims 1 and 2 of the ’984 patent. "We concur.
Neither Conform nor Unipak participated in discovery. Conform was subject to evidentiary sanctions. With respect to Conform, the ALJ ruled that an inference was to be drawn that the testimony, documents, or other evidence sought from that firm by complainant would be adverse to Conform. With respect to Unipak, the ALJ ordered that without further notice to that firm, the facts could be found to be as alleged in the complaint and the notice of investigation. In view of these firms’ refusal to participate in discovery and the ALJ’s finding that the Commission has jurisdiction over them, we agree with the ALJ that, on the record of this investigation, the processes used by Conform and Unipak in manufacturing multicellular plastic film infringe the ’984 patent.
*112I can see no other conclusion than that the findings of the ALJ and the ITC rest solely on the basis of ¿n erroneous interpretation of the law, without any evaluation of the evidence.
The majority characterizes Unipak’s conduct as arrogant and intransigent. I find the objections of Unipak entirely in order. Only the most formalistic tribunal would not deem Unipak’s initial letter sufficient to avoid a default. Even though insufficient as a complete answer, it raised a jurisdictional defense which fairness required be ruled upon, with additional time being given for answer thereafter. Moreover, in view of our treaty obligations with Hong Kong,4 the holding of in personam jurisdiction would have required taking into account the time periods and service requirements under the treaty, before default sanctions can be imposed.
Finally, the answer filed by Unipak’s importer, the person who was actually found in violation of the statute, could also have been deemed an adequate answer with respect to Unipak products since, as the majority points out, the order operates against products, not persons. This court has previously held that a named respondent who is not an owner, importer, or consignee and whose interests are represented by another party to the proceeding, may be excluded involuntarily from participation in an ITC investigation even though it may be adversely affected by the order. Such person is not a necessary party. Import Motors Ltd. v. U.S. International Trade Commission, 63 CCPA 57, 530 F. 2d 940, 188 USPQ 491 (1976). No attack has been made on the answer of the importer of Unipak's products, and no finding was made that Unipak is an importer, owner, or consignee. Further, the Commission was fully advised of the relationship between Polybubble and Unipak. With respect to Unipak’s products, therefore, unless the proceeding is in personam, as the ITC held, an answer as to Unipak’s products has been made.5
The reliance by the Commission (but not the ALJ )and the majority on Unipak’s alleged refusal to participate in discovery is to me anomalous. Without knowledge as to what was asked in the interrogatories, what facts are being inferred? Even with respect to this misconduct, Unipak did not fail to respond but rather objected to the interrogatories, the most standard response. Further, no evi-dentiary sanctions flow automatically from an objection or even from completely ignoring a set of interrogatories. Were that the case, *113trial court dockets would be relatively clear. It is incumbent upon the proponent under the ITC rules to seek an order compelling discovery.6 Only if that is granted and ignored may the ALJ choose among the various sanctions which it is authorized to impose. None was asked for here, and none issued.
The majority views Unipak’s actions as frustrating the ITC and sees no reason to place this lethal weapon in the hands of a foreign manufacturer. I cannot find the smoking gun. The lack of cooperation of a named respondent does not render the complainant nor the ITC impotent. Nor does it relieve the ITC from the requirements of the Administrative Procedures Act (APA), 5 U.S.C. 556(d), that an order must be supported by reliable, probative, and substantial evidence.7 Evidence could have been sought from Unipak as a third party witness by deposition or letters rogatory.8 I do not find it places too gre'at a burden on a complainant to have to obtain evidence in order to be entitled to the sweeping relief afforded by an exclusion order. The rights being enforced here are essentially private rights. If the complaint shows that the matter is of sufficient public interest, the ITC can assist by obtaining evidence on its own.
It is apparent from the ITC’s above-quoted letter to Unipak that the complainant was fully prepared to proceed with obtaining evidence in Hong Kong. The ALJ’s holding of in personam jurisdiction and infringement by default early in the proceedings made that unnecessary. This ruling, subsequently adopted by the Commission, was determinative of the outcome. The majority’s statement that it was not is contradicted not only by the record but also by its own opinion.
The majority does not answer the issue raised by this appeal, namely, whether the ITC has in personam jurisdiction over Unipak, ruling instead that that determination is irrelevant. I agree that in personam jurisdiction is irrelevant to the power of the ITC to issue exclusion orders affecting Unipak’s products, but it is not irrelevant to the findings which were advanced to support the order in this case. It is critical. In my view the ITC’s interpretation of its authority is clearly in error and the majority’s sanction of the result of the proceedings below violates fundamental precepts of administrative law.
The ITC’s investigative authority
The ITC, like any other administrative agency or board, is entirely the creature of statute. Civil Aeronautics Board v. Delta Air Lines, Inc., 367 U.S. 316 (1961); Soriano v. United States, 494 F. 2d 681 *114(CA 9 1974). Any authority delegated or granted to an administrative agency is necessarily limited to the terms of the delegating statute. As Chief Justice Warren said in Civil Aeronautics Board, supra, at 322, “[T]he determinative question is not what the Board thinks it should do, but what Congress has said it can do.”
The Government and Sealed Air in their briefs on appeal, and the ALJ who made the recommendation for the finding of in personam jurisdiction adopted by the ITC, do not look to the statute as the jurisdictional base, but find, under the precedent of International Shoe Co. v. Washington, 326 U.S. 310 (1945), that the assertion of in personam jurisdiction over Unipak would not violate basic principles of due process because Unipak can be found to have had sufficient minimum contacts with the United States. In International Shoe, there was no question that the court of the forum had by statute been given such jurisdiction. The question was whether the jurisdictional statute violated due process requirements. International Shoe thus provides a test, not a grant, of authority. For authority, we must look to the statute.
In the proceeding under review, the ITC is acting pursuant to 19 U.S.C. 1337 and 1337a, the provisions of which are set out in the footnote.9
*115In addition, general provisions applicable to all types of proceedings before the ITC and pertinent here are found in 19 U.S.C. 1331, 1333, and 1335.10
No provision can be found in any grant of power to the ITC for service of a complaint and notice of investigation in a section 1337 investigation, the type of provision which indicates in personam jurisdiction. Nor is a named respondent required by the statute to answer.11 That most may choose to do so in order to influence the outcome of the investigation may well be likely, but the consequences of failing to answer under the ITC’s own rules is not a default judgment but the waiver of a right to participate.12 The rule prevents one from attempting to enter the proceedings at a later date. It must be kept in mind that the ITC does not issue a summons to bring parties before the tribunal; it issues a notice to satisfy due process requirements. The concepts are fundamentally different.
The absence of legislative authorization for in personam jurisdiction cannot be treated as a mere inadvertence. A commission can function which has been given no more than a mandate to investigate into certain subject matter and must rely on voluntary cooperation to obtain the information it needs.13
To add force to the conduct of an agency’s investigations, an agency can be given subpena power or it can be given in personam jurisdiction over domestic or over domestic and foreign persons, or it can be given any combination of these forms of compulsory process. The choice is that of Congress, not the agency or the courts. Each of these powers must be found separately in the legislative grant. An agency can be challenged if it seeks to invoke compulsory process against persons over whom it has been given no such authority, Serr v. Sullivan, 270 F. Supp. 544, aff’d 390 F. 2d 619 (CA 3 1968), or if it operates beyond the scope of its subject matter jurisdiction. Canadian Pacific Ltd. v. United States, 379 F. Supp. 128 (D DC 1974). Each is a separate ground for invalidating agency action. Leasco Data Processing Equipment Corp. v. Maxwell, 468 F. 2d 1326 (CA 2 1972). Moreover, even where a statute provides for personal jurisdiction, such authority does *116not extend to persons outside the territorial jurisdiction unless it is written specifically to apply to them, or at least in such broad terms as to warrant interpretation that service abroad was intended to be included.14
Judge Friendly, in Leasco Data Processing Equipment Corp. v. Maxwell, supra, was faced with challenges against the exercise of authority by the SEC over nonresidents. His opinion elucidates on the distinction between subject matter jurisdiction and personal jurisdiction and is instructive as to the type of examination of a statute which must be made and which was not made below or by the majority.15
Had such an examination been made, the only conclusion is that Congress did not give the ITC in personam jurisdiction under the subject statute as originally enacted, and no change in this respect was made by the amendments of the Trade Act of 1974.
The compulsory process which has been given to the ITC is broad subpena power under 19 U.S.C. 1333. In addition, the ITC has been given authority to investigate on its own in the United States or abroad under 19 U.S.C. 1331(d).
This is the extent of the ITC’s authorized powers in conducting a section 1337 investigation, as well as others for which it has responsibility, and its powers have remained unchanged since the creation of its predecessor, the Tariff Commission, in 1916 (39 Stat. 975).
Investigations by the Tariff Commission relating to unfair methods of competition in the importation of articles into the United States were first authorized by the Tariff Act of 1922 (42 Stat. 943). As originally conceived, the Commission made a recommendation to the President, after investigating a complaint and making a determination that there were unfair acts which justified either an exclusion order against importation of certain goods or a punitive duty. The issuance of the order was by the President, but such an order had to be supported by the findings of the Commission. In re Orion Co., 22 CCPA 149, 71 F. 2d 458, 21 USPQ 563 (1934).
The purpose of the exclusion remedy was to get away from in personam procedures which United States business found unsatisfactory. Being unable in most cases to sue a foreign supplier, a U.S. business faced with infringing products from abroad was forced to pursue a multiplicity of individual importers, and if a court enjoined one, another could be found to take his place. Thus the exclusion remedy was conceived.
*117In 1974 the authority and procedures of the ITC were changed in significant respects. The ITC is now authorized to issue exclusion orders, with the President having in effect a veto over such action. Congress also provided for a broader scope of inquiry by the ITC. For example, previously the ITC did not consider questions of patent validity; now it must include a validity determination. On appeal, this court is no longer bound to accept findings of fact whenever supported by some substantial evidence and will not when clearly contrary to the weight of the evidence. Solder Removal Co. v. U.S. International Trade Commission, 65 CCPA 120, 582 F. 2d 628, 199 USPQ 129 (1978). Broader protection was given to litigants by clear identification of section 1337 investigations as adjudications to be made on the record after notice and opportunity for hearing and specific incorporation of the Administrative Procedure Act (19 U.S.C. 1337 (c)). Significantly, no change was made in what compulsory process is available to the ITC. In personam jurisdiction cannot he found in the statute.16
The decision below turned on the finding that the ITC had in personam jurisdiction over Unipak. If that basis is not accepted, the order must he vacated and the case remanded. It is for the ITC to judge initially whether its findings are supportable on the record if in personam jurisdiction is not required to support them. Not even the broadest reading of the Chenery case, supra, allows this court to substitute evidentiary findings fer the findings below. The Chenery case and its long line of progeny clearly prohibits this court from making the first evaluation of the evidence or inferring that such an evaluation was made below from the pro forma reference to the record.
Since the majority and I are in basic disagreement as to the holding in Chenery, supra, more than passing reference must be given to the case. The issue in Chenery was very similar to that of the instant case. Under review was an order by the Securities and Exchange Commission approving a plan of reorganization of a company. Over objections by respondents, certain preferred stock which respondents had acquired, unlike preferred stock of others, could not be converted into stock of the reorganized company. The Commission did not find any fraudulent acts in the acquisition of the stock by the respondents, but relied upon the fact that the respondents were reorganization managers. The Commission, by analogy, applied the legal restrictions imposed on trustees to respondents, relying on broad equitable principles. The Supreme Court stated:
*118Since the decision of the Commission was explicitly based upon the applicability of principles of equity announced by courts, its validity must likewise be judged on that basis. The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based. [318 U.S. at 87.]
After remand, the case came before the Supreme Court again in SEC v. Chenery Corp., 332 U.S. 194 (1947). In the second case, different grounds were advanced and these were upheld. The Court stated:
When the case was first here, we emphasized a simple but fundamental rule of administrative law. That rule is to the effect that a reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such actions solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis. To do so would propel the court into the domain which Congress has set aside exclusively for the administrative agency.
We also emphasized in our prior decision an important corollary of the foregoing rule. If the administrative action is to be tested by the basis upon which it purports to rest, that basis must be set forth with such clarity as to be understandable. It will not do for a court to be compelled to guess at the theory underlying the agency’s action; nor can a court be expected to chisel that which must be precise from what the agency has left vague and indecisive. In other words, “We must know what a decision means before the duty becomes ours to say whether it is right or wrong.” [332 U.S. at 196-97.] [Citation omitted.]
The quotation in the Chenery case noted by the majority that a decision may be affirmed if the result is correct, “although the lower court relied upon a wrong ground or gave a wrong reason,” is taken from Helvering v. Gowran, 302 U.S. 238, 245 (1937). In Helvering the alternative grounds had been argued before the first decisionmaker, in that case the Commissioner of Internal Revenue, and different grounds had been adopted by the Board of Tax Appeals. The reviewing appellate court adopted the Commissioner’s position. The Supreme Court affirmed, but even in Helvering the Court remanded to give the petitioner an opportunity to put in additional evidence because of the change in the basis for the decision. No support can be found in Chenery or Helvering for this court to uphold an order by interjecting a new ground, sua sponte, which was not advanced by the Government, briefed by the parties, or argued to this court, and which requires an evaluation of evidence. Such an evaluation is specifically *119proscribed in Chenery. The statement quoted by the majority is followed by:
But it is also familiar appellate procedure that where the correctness of the lower court’s decision depends upon a determination of fact which only a jury could make but which has not been made, the appellate court cannot take the place of the jury. Like considerations govern review of administrative orders. [318 U.S. at 88.]
The prohibition against substitution of this court’s judgment cannot be escaped by relying on the ITC’s conclusory statement that “on the record” the Unipak process has been found to be an infringement. Chenery requires not only findings but an explanation.
In State Corp. Com’n of Kansas v. FPC, 206 F. 2d 690 (CA 8 1953), the court remanded where the Commission order under review stated explicitly that the Commission had examined “all of the available evidence of record.”
In NLRB v. Clement-Blythe Co., 415 F. 2d 78 (CA 4 1969), an order entered after a summary judgment proceeding before the NLRB was vacated and remanded for the following reasons:
[T]he use of summary judgment in deciding whether an employer has committed an unfair labor practice does not exempt the Board from complying with the Administrative Procedure Act [5 U.S.C. section 557(c)].* * *
*******
When the Board rules that an employer has committed an unfair labor practice, the employer is entitled to know, and the Board is charged with the duty of stating, the reasons why the Board concluded the facts showed a violation of the law. [Id. at 81.]
* * * * * * *
[L]ack of clarity in the administrative process infects review with guesswork. [Id. at 82.]
See also Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 167-68 reaffirming the SEC v. Chenery Corp. requirements that the order be upheld on the basis articulated by the agency itself and that findings below must be specific.
Moreover, the absence of required findings is fatal even though there may be ample evidence to make the finding.17 As stated in Anglo-Canadian Shipping Co. v. Federal Maritime Commission, 310 F. 2d 606, 617 (CA 9 1962):
For the Commission, without any attempt whatever to comply with the requirements of section 8(b) [now 5 U.S.C. 557(c)], to *120issue its conclusory order of January 23, 1962, merely in the language of the statute, was an egregious error.
As noted in [Saginaw Broadcasting Co. v. FCC, 96 F. 2d 554, 563 (1938)], the absence of required findings is fatal to the validity of an administrative decision regardless of whether there may be in the record evidence to support pro.er findings. We were not required therefore to inquire as to what evidence there was which might have supported adequate findings. * * *
The requirement for specific, definite, and basic findings, not mere ultimate findings or conclusions, is well settled and without contradiction. See United States v. Pierce Auto Freight Lines, 327 U.S. 515 (1946); Colorado-Wyoming Co. v. Federal Power Commission, 324 U.S. 626 (1945); Morgan v. United States, 298 U.S. 468 (1936); United States v. Chicago, M. St. P. & P.R. Co., 294 U.S. 499 (1935); Florida v. United States, 282 U.S. 194 (1931); Davis Administrative Law Treatise, chapter 16, paragraphs 16.01-16.14.
Since there are no findings in the order below other than conclusory findings as to Unipak and Conform and their importers, the order is not in conformity with 5 U.S.C. 557(d) (APA). The order should be vacated and the case remanded for review by the ITC of the evidence, with consideration being given to requests by all parties to submit additional evidence in view of the numerous procedural errors which resulted in no foundation for its issuance.
The scope of the order
The majority modifies the effect of the order below by placing Unipak in the same position as every other foreign manufacturer of multicellular plastic film who was not a party to the proceeding. All multicellular plastic film products, except those of Tong Seae are blocked until a determination is made by the ITC in a subsequent proceeding that they are made by a noninfringing process.
I have previously expressed my views that the ITC may not issue an exclusion order broader than the investigation it noticed and conducted.18 In this case, it is particularly offensive that the ITC has invoked sanctions against an entire industry throughout the world on the basis of technical defaults by two named respondents.
What has occurred here results from broad judicial construction,tno congressional action. This court endorsed the concept that patent infringement without other unfair acts, such as false advertising or unfair pricing (both alleged by complainant here but not found below) constitutes an unfair method of competition within the meaning of 19 U.S.C. 1337. Such other acts, which originally were considered an inherent requirement in the statute, pinpointed who were violators. *121Assuming that the judicial interpretation which finds patent infringement per se enough under section 1337 is correct, it does not follow that orders may issue against an industry. The ITC is engaged in adjudication, not industrywide rulemaking, in the type of proceeding here under review.
Technically, the use of the process could infringe only if practiced in the United States. For convenience, the term infringement is used in this opinion in the broader sense to include practice abroad.
Although complainant's motion for default is dated Aug. 14, 1978, it hears a filing date stamp of Sept. 7, 1978.
19 CFR 201.5 provides for payment of the same fees as paid to witnesses in the courts of the United States.
Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents, 20 UST 361.
The majority interjects its view that the importer's answer may be treated as insufficient, in order to Justify disregarding its effect in this proceeding, notwithstanding that the pleadings therein parallel those in the Tong Seae answer. Further, the majority’s view that the pleadings in the complaint concerning Unipak's process are in themselves sufficient to make out a prima facie case ignores that the pleadings are wholly conclusc-ry, not factual. The allegations of the complaint are that all commercially feasible processes for making multicellular plastic film infringe Sealed Air's patent, a position rejected by this court in the companion appeal.
19 CF R. 210.36.
ITC has subsequently recognized this requirement in In re Certain Rotary Scraping Tools, 208 USPQ 356 (1980).
The Hague Convention on the Taking of Evidence Abroad, 23 UST 2555, would have assisted complainant.
To avoid confusion, one must note that 1337(a) and 1337a are separate sections of the statute.
Section 1337
(a) 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, efficiently 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 unlawful, and when found by the Commission to exist shall be dealt with, in addition to any other provisions of law, as provided in this section.
(b)(1) The Commission shallinvestigateanyalleged violationofthissectionon complaint under oath or upon its initiative.
(c) The Commission shall determine, with respect to each investigation conducted by it under this section, whether or not there is a violation of this section. Each determination under subsec. (d) or (e) of this section shall be made on the record after notice and opportunity for a hearing in conformity with the provisions oí subch. II of cb. 5 of title 5. All legal and equitable defenses may be presented in all cases. Any person adversely affected by a final determination of the Commission under subsec. (d), (e), or (Í) of this section may appeal such determination to the U.S. Court of Customs and Patent Appeals. Such court shall have jurisdiction to review such determination in the same manner, and subject to the same limitations and conditions, as in the case of appeals from decisions of the U.S. Customs Court.
(d) Jf the Commission determines, as a result of an investigation under this section, that there is violation of this section, it shall direct that the articles concerned, imported by any person violating the provision of this section, be excluded from entry into the United States, unless, after considering the effect of such exclusion upon the public health and welfare, competitive conditions in the U. S. economy, the production of like or directly competitive articles in the United States, and U.S. consumers, it finds that such articles should not be excluded from entry. The Commission shall notify the Secretary of the Treasury of its action under this subsection directing such exclusion from entry, and upon receipt of such notice, the Secretary shall, through the proper officers, refuse such entry.
Section 1337a
The importation for use, sale, or exchange of a product made, produced, processed, or mined under or by means of a process covered by the claims of any unexpired valid U.S. Letters Patent, shall have the same status for the purposes of sec. 1337 of this title as the importation of any product or article covered by the claims of any unexpired valid U.S. Letters Patent.
Sec. 1331(d) provides that the Commission may prosecute any inquiry anywhere in the United States or in any foreign country. Sec. 1333 provides for subpena of witnesses and documents. Sec. 1335 authorizes the adoption of reasonable rules and regulations.
Cf. 15 U.S.C. 45 (b) and (f) for statutory authorization of this kind and Justice Brandéis' comparison of statutory requirements for answer relating to the FTC Mid to the ICC in Federal Trade Comm. v. Klesner, 280 U.S. 19, at 25-27 (1929).
19 CFR 210.21(d):
(d) Default. Failure of a respondent to file a response within the time provided for in subsection (a) of this section may be deemed to constitute a waiver of its right to appear and contest the allegations of the complaint and of the notice of investigation, and to authorize the presiding officer, without further notice to that respondent, to find the facts to be as alleged in the complaint and notice of investigation and to enter a recommended determination (or a determination if the Commission is the presiding officer) containing such findings.
Administrative Law, Bernard Schwartz, Little, Brown & Co., (1976), p. 104.
For example, see U.S.C. 1451(b); 35 U.S.C. 146, 293; 15 U.S.C. 77v(a), 78aa, 79y; 28 U.S.C. 1655; 38 U.S.C. 784(a).
The majority refers to evidence to support a finding of in personam jurisdiction, without looking for a statutory base.
The majority relies on the authority of the ITC to make reasonable rules of procedure. 19 U.S.C. 1335. No rule or regulation can expand the basic jurisdiction of the ITC. Soriano v. United States, 494 F. 2d 681 (CA 9 1974); Federal Maritime Comm. v. Anglo-Canadian Shipping Co., 335 F. 2d 255 (1964). Nor did the ITC follow its rules here, which it was obligated to do, if sanctions for failure to make discovery were to be imposed.
There is no ample evidence here. Mr. Fielding's testimony is contradicted by the testimony of the ITC staff that the extrusion process of Unipak, like that of Tong Seae, was not an infringement.
Canadian Tarpoly Co. v. U.S. International Trade Commission, appeal No. 81-5, dissenting opinion of Feb. 5, 1981.