Sealed Air Corp. v. U.S. International Trade Commission

Markey, Chief Judge. This is a consolidated appeal from the June 29, 1979, determination of the U.S. International Trade Commission (ITC) terminating investigation No. 337-TA-54, “Certain Multicellular Plastic Film” (film). All respondents save one were found in violation of section 337 of the Tariff Act of 1930, as amended by the Trade Act of 1974, by reason of the importation of the film into, or its sale in, the United States. We affirm. BACKGROUND On May 12, 1978, Sealed Air Corp. (Sealed Air) filed a complaint with the ITC, alleging violations of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), by the importation into the United States, or subsequent sale, of film manufactured in a foreign country by processes that allegedly infringed method claims 1 and 2 of U.S. Letters Patent 3,416,984 (’984). After a January 1979 evidentiary hearing, a Commission Administrative Law Judge (ALJ) concluded that the claims were invalid under 35 U.S.C. 103 and recommended that no violation of 19 U.S.C. 1337 be found. The ALJ determined that the ITC had jurisdiction over all respondents. Manufacturers named and served were: Tong Seae Industrial Co., Ltd. (Tong Seae) of Taiwan; Conform Plastics Ltd. (Conform) of New Zealand; and Unipak (H.K.) Ltd. (Unipak) of Hong Kong. — 96 — Importers named and served were Polybubble, Inc. (Polybubble) and Peter Darlington, d.b.a. Solar Pool Covers (Darlington). Unipak neither answered the complaint nor participated in discovery. Conform filed a response but did not participate in discovery or in the hearing. Darlington participated in discovery but not in the hearing. Neither Conform nor Darlington is represented in this appeal. A June 26, 1978, mailing of the complaint and other papers by the ITC to Unipak resulted in a return receipt stamped July 6, 1978. Unipak admittedly received Sealed Air’s request for discovery and declined to participate. Four shipments of film into the United States were made by Unipak, with Polybubble as the importer. On December 7, 1978, upon motion by Sealed Air, the ALJ issued order No. 6, finding Unipak in default and ruling that “without further notice to Unipak, the facts may be found to be as alleged in the complaint and notice of investigation.” The Commission: (1) Keversed the ruling of invalidity; (2) found Tong Seae’s process noninfringing; and (3) sustained the finding of jurisdiction with respect to Unipak. Conform and Unipak were found to have infringed claims 1 and 2 of the ’984 patent. All respondents except Tong Seae were held in violation of 19 U.S.C. 1337. Polybubble, as an importer of Unipak’s products, and Tong Seae challenge the ruling that the ’984 patent is valid. Sealed Air challenges the determination of noninfringement by Tong Seae. Unipak challenges the determination that it is subject to the jurisdiction of the ITC.1 issues (1) Would the subject matter of claims 1 and 2 of the ’984 patent have been obvious to one of ordinary skill in the art at the time the invention was made? (2) Was the determination that Tong Seae’s extrusion process does not infringe claims 1 and 2 of the ’984 patent erroneous? (3) Did the ITC have jurisdiction to exclude Unipak’s product? (1) Validity of Claims 1 and 2 (a) The invention The ’984 patent discloses and claims a process for manufacturing film. Two sheets of polyethylene are so heated, shaped, and bonded together as to form numerous airtight cells. The resulting cushioning and insulating properties make the product useful as packaging material and as covers for swimming pools. — 97 — In the ’984 process, two sheets of film are separately heated. One sheet (the embossed film) is heated to a low temperature sufficient to render it deformable by vacuum drawing into the cavities of an embossing roller to form numerous discrete embossments. The second sheet (the laminating film) is heated to about the fusion temperature with at least one surface above the fusion temperature, and then applied to the now embossed surface of the embossed film while the latter is still on the embossing roller. During their mating, transfer of heat from the laminating film to the embossed film seals the two films to form a product having numerous airtight cells. Unlike prior art techniques, the ’984 process employs a cooler embossed film and a hotter laminating film. It had previously been thought that effective sealing required the mating surfaces of both films to be at or above the fusion temperature2 at the kiss point, where the embossed film contacted the laminating film. The problem was that when the embossed film was heated to fusion temperature, it became so soft and weak that individual embossments often ruptured when subjected to vacuum during their formation. The solution to that problem disclosed in the ’984 patent is to so increase the temperature of the contact surface of the laminating film as to allow a reduced temperature of the contact surface of the embossed film, thus permitting vacuum embossment without rupture, and to transfer the excess heat from the laminating film to the embossed film at the kiss point, thus equalizing the temperatures of both films at or above the fusion temperature and producing an effective heat seal between them. Claims 1 and 2 of the ’984 patent read: 1. The method of making cellular material comprising the steps of embossing a first heated sheet of plastic material having thermoplastic properties, said sheet having been heated on one side to about its fusion temperature, said embossments extending from the other side of said sheet, reducing the temperature on the other side of said sheet below the embossing temperature immediately after embossment thereof, heating a second sheet of plastic having thermoplastic properties to about the fusion temperature with a,t least one surface above the fusion temperature, feeding said one side of said second sheet into contact with said one side of said embossed sheet while above the fusion temperature to seal the embossments therein, said one surface of said second sheet transferring heat to said one side of said first sheet to equalize the temperatures of the meeting surfaces of said sheets at a temperature at least equal to the fusion temperature. 2. The method of making a cellular material according to claim 1 including the steps of cooling the other side of said first sheet immediately upon embossment thereof and then cooling said sheets to permanently seal them one to the other. — 98 — (6) Validity Analysis of validity under 35 U.S.C. 103 requires determination of the scope and content of the prior art, ascertainment of differences between the prior art and the invention claimed, and resolution of the level of ordinary skill in the art. Graham v. John Deere Co., 383 U.S. 1, 17 (1966). The principal prior art reference is U.S. Patent No. 3,142,599 (Chavannes I) assigned to Sealed Air.3 Chavannes I discloses a process of embossing a heated film and applying a heated laminating film to the embossments, and, as in the ’984 patent, employs low-density polyethylene films having a narrow temperature band in which embossing may be performed. The minimum embossing temperature 4 and the melting temperature5 are separated, dependent on the characteristics of the film selected, by as little as 10° to 20°. The embossing temperature is between 218° and 226° F. and the melting temperature is between 225° and 230° F.6 The fusion temperature is between 214° and 222° F. Chavannes I teaches that both films should be so heated that their mating surfaces will be at fusion temperature at the kiss point. Both films were processed in Chavannes I at a temperature considered very close to their upper limits, and the embossed film remained susceptible to ruptured embossments. Though the surface of the embossed film in contact with Chavannes’ cool embossing roller lost heat, Chavannes taught maintenance of its opposite or “mating” surface at the fusion temperature or greater. The film being relatively thin (1-5 mils), each of its surfaces is affected by temperature changes on the opposite surface. Extreme care was necessary with the Chavannes I process in attempting to minimize the tearing effect of embossment by keeping one surface of the embossed film as cool as possible, while simultaneously, and directly contra the teachings of the '984 patent, maintaining the opposite mating surface at fusion temperature. Though claim 1 of the '984 patent speaks of initially heating the mating surface of the embossed film to about its fusion temperature, the cooling step of that claim reduces that temperature below the fusion level; next, at the kiss point, the surface of the embossed sheet is brought up to fusion temperature. Nothing in Chavannes I discloses or suggests the steps of the asserted claims in which the mating — 99 — surface of the embossed film is cooled and sealing is accomplished through heat transfer from the laminating layer.7 Chavannes and Fielding obtained a patent (Chavannes II) on “Apparatus for Embossing and Laminating Material,” 8 relating to fabrication of film. Chavannes II discloses a cooling means within the embossing roller to cool and thus strengthen the embossments as they are formed. Insulating means on the roller are also disclosed, however, to shield the mating surface of the film from the effect of the cooling means, so that the mating surface may be maintained, as in Chavannes I, at fusion temperature. While Chavannes II teaches means to lower the temperature of one surface of the embossed film, its teaching of means to maintain a high temperature of the mating surface is contrary to the process steps of the asserted claims by which the latter temperature is reduced below fusion temperature. Chavannes II also discloses a three-film lamination in which a third layer is heated to near its melting point and placed over the salient portions of sealed cells, to transfer sufficient heat from the third layer to form a firm joinder. Sealed Air says: (1) Chavannes II discloses only a tack seal,9 not the complete hermetic seal of the '984 patent; (2) Chavannes II is not a valid reference because it issued to the same inventors after the filing date of the application on which the '984 patent issued; and (3) there is no evidence that the three-layer heat transfer embodiment was used or known by others before the filing date of the '984 patent. Tong Seae and Polybubble point to Fielding’s testimony to support their contention that the three-layer heat transfer embodiment was known in the art. Fielding, however, testified that that embodiment produced a peelable tacking seal. Thus the only evidence of record supports Sealed Air’s position on the nature of the Chavannes II seal. Though Fielding referred to his experience, nothing of record indicates the nature of that experience, or whether it involved actual use of the three-layer embodiment, or whether it occurred before or after the filing date of the ’984 patent. Consequently, respondents have not sustained their burden of proof, having failed to demonstrate that the teachings of Chavannes II were known to others before the filing date of the ’984 patent. 35 U.S.C. 102(a). Hence, Chavannes II has not been shown to be a valid reference. The scope and content of the prior art contain nothing to suggest the differences disclosed in the claimed invention, and the level of skill reflected in the record did not rise to a point at which it can be — 100 — said that the process of claims 1 and 2 as a whole would have been obvious to one skilled in the art at the time the invention was made. No reference discloses or suggests the steps of lowering the temperature of an embossed film sheet, increasing the temperature of a laminating film sheet, and transferring heat between their mating surfaces to hermetically bond them. Accordingly, we affirm the determination of the ITC that claims 1 and 2 of the ’984 patent are valid. (2) Infringement In the Tong Seae process, polyethylene is heated to about 540° F. and extruded as a hot liquid directly onto an embossing roller. The embossing roller is extensively cooled by refrigerated air and water. A fine mesh screen underlies each roller cavity to prevent molten polyethylene from being drawn through the cavity by the applied vacuum and is also chilled by refrigerated air and water. The extruded liquid film, upon contacting the roller surface, inner cavity walls, and mesh screens, is cooled to solidification. The laminating film is also extruded as a hot (about 540° F.) liquid and brought into contact with the embossed film after the embossments are formed. The two films, while still on the embossing roller, then pass through a pool of chilled water to solidify the seal between them. Sealed Air’s expert witness, Buckley, having viewed the Tong Seae process and taken temperature readings, said that the temperature of the embossed film fell well below the fusion temperature after embossment. Because a bond was formed between the two films, says Buckley, heat transfer from the laminating film must have occurred. It is undisputed that the Tong Seae process does not literally infringe claims 1 and 2 of the ’984 patent. Those claims specify the heating of preformed plastic sheets. The Tong Seae process forms the film product from molten plastic extruded directly onto an embossing roller. Sealed Air therefore relies on the doctrine of equivalents. Claim limitations to heating the embossed sheet and one side of the laminating sheet to about the fusion temperature are to be viewed, says Sealed Air, as energy efficient steps in a reheating process, and should not be rigidly read as critical temperature controls. Also, says Sealed Air, the recited temperature limitations merely relate to the best mode of carrying out the broad inventive concept of lowering the embossed film temperature to prevent rupturing, and holding the laminating film sufficiently above fusion temperature to bring the mating surfaces to at least the fusion temperature. Equivalence is determined against the context of the patent, the prior art and the particular circumstances of the case. Graver Tank & Mfg. Co., Inc. v. Linde Air Products, 339 U.S. 605 (1950), 7 Deller’s — 101 — Walker on Patents section 546 (2d ed. 1972). A finding of equivalence or nonequivalence is one of fact. Parmelee Pharmaceutical Co. v. Zink, 285 F. 2d 465, 128 USPQ 271 (CA8 1961). That finding will not be disturbed unless clearly contraiy to the weight of the evidence. Solder Removal Co. v. ITC, 582 F. 2d 628, 199 USPQ 129 (CCPA 1978). For an accused process to infringe under the doctrine of equivalents, it must employ substantially the same means, to achieve substantially the same results, in substantially the same way, as the patented process. Graver Tank & Mfg. Co., Inc. v. Linde Air Products, supra, at 608. The Commission concluded, and we agree, that present here are substantially the same means (thermoplastic material, vacuum embossing, and heat), and substantially the same result (the manufacture of the film without rupture of cells), hut absent is the achievement of that result in substantially the same way. Unlike the Tong Seae process, the patented process depends for success upon careful control of film temperature before and during embossment and lamination. Fielding’s testimony that laminating film would self destruct if heated above melting temperature undercuts Sealed Air’s position that a process employing molten laminating film at hundreds of degrees above melting temperature represents an equivalent of its process employing preformed sheets heated below melting temperature. Moreover, Tong Seae’s process step of rapidly cooling down from hundreds of degrees is distinct from the very narrow range operation of the ’984 process. Further, it is incongruous for Sealed Air to argue that its process is not dependent on close control of temperatures in light the of the ’984 disclosure treating sides of a very thin sheet at different temperatures within very narrow ranges. The ITC noted portions of the ’984 specification, attorney’s comments during prosecution of the ’984 patent, and testimony of Fielding, all describing the necessity of bringing the two sides of two films, or portions thereof, to a specific temperature or temperature range at various points in the ’984 process. Referring to the language of the claims, the ITC concluded that the Tong Seae extrusion process neither depends upon the temperature control technique of, nor operates in substantially the same way as, the patented process. Sealed Air, in its brief says ITC relied on portions of the record that relate more to the state of the art prior to introduction of the ’984 process, which, says Sealed Air, reduced dependency upon rigid temperature control by eliminating the requirement of the Chavannes I process that the mating surface of the embossed film be maintained at or above fusion temperature. The ’984 process is, however, dependent upon maintaining prefabricated sheets within a narrow temperature range. Moreover, the thermal characteristics of the polyethylene — 102 — material dictate that film be cool enough to enable reliable embossment; that mating surfaces be at fusion temperature to effect sealing, and those parameters are fixed whether the process be one of reheating or extrusion. Sealed Air’s patent claims 1 and 2 cannot be read to encompass all embossing and sealing processes operating within those inherent temperature confines. A pioneer invention, performing a function never before performed, is entitled to liberal application of the doctrine of equivalents. Morley Machine Co. v. Lancaster, 129 U.S. 263 (1889); Parmelee Pharmaceutical Co. v. Zink, supra. The ’984 patent, however, discloses a process earlier performed, that is, the production of multicellular film by heating, vacuum embossing, and sealing. Sealed Air is entitled to protection of its claimed improvement of the process, but others are entitled to practice variations of the old process, so long as those variations differ from and do not include that of the ’984 patent. Universal Oil Products Co. v. Globe Oil & Refining Co., 322 U.S. 471 (1944); see Coleco Industries, Inc. v. I.T.C., 65 CCPA 105, 573 F. 2d 1247, 197 USPQ 472 (CCPA 1978). Nor is equivalence established by showing accomplishment of the same result. The test is whether the claimed method in all substantial aspects has been followed. U.S. Rubber Co. v. General Tire and Rubber Co., 128 F. 2d 104, 53 USPQ 444 (CA6 1942). Sealed Air has not met that test. Sealed Air’s contention that claims 1 and 2 merely set forth the best mode, and should be interpreted to encompass processes employing the inventive concept of heat transfer between film mating surfaces, is without merit. It is axiomatic that the claims measure the invention,10 and courts may neither add to nor detract from a claim. Cimiotti Unhairing Co. v. American Fur Refining Co., 198 U.S. 399 (1905); Ohio Citizens Trust Co. v. Lear Jet Corp., 403 F. 2d 956, 160 USPQ 11 (CA10 1968). Sealed Air’s attempt to substitute an inventive concept for the invention set forth in the claims is tantamount to claiming infringement based on a function or result; abstractions cannot be patented. Westinghouse v. Boyden Power Brake Co., 170 U.S. 537 (1898); Nelson v. Batson, 322 F. 2d 132, 138 USPQ 552 (CA9 1963). We reaffirm the determination of the ITC that claims 1 and 2 of the ‘984 patent are not infringed by the Tong Seae process. (8) Jurisdiction Unipak having failed to respond to the complaint, and having refused to participate in discovery, the ITC entered an order excluding — 103 — the relevant products of Unipak from entry into this country. Unipak has appealed, asserting that it was given inadequate notice of the investigation and had insufficient contacts with the United States to support the jurisdiction of the ITC. That assertion is based on an incorrect view of the nature of ITC’s jurisdiction. The order was not entered against Unipak personally. The sole effect upon Unipak is that the relevant product cannot be imported into the United States until it is established that it has not been made by the patented process. The order is directed against, and only against, certain "multicellular plastic material manufactured abroad in accordance with the process disclosed by claims 1 and 2 of U.S. Letters Patent 3,416,984.”11 An exclusion order operates against goods, not parties. Accordingly, that order was not contingent upon a determination of personal or in personam jurisdiction over a foreign manufacturer. The Tariff Act of 1930 (Act) and its predecessor, the Tariff Act of 1922, were intended to provide an adequate remedy for domestic industries against unfair methods of competition and unfair acts instigated by foreign concerns operating beyond the in personam jurisdiction of domestic courts. See, In re Orion Co., 22 CCPA 149, 163, 71 F. 2d 458, 467, 21 USPQ 563, 571 (1934). Authority to provide such remedy is grounded in Congress plenary constitutional power to regulate foreign commerce, a portion of which power Congress delegated to the ITC under 19 U.S.C. 1337.12 That Congress has wide discretion concerning procedures for barring imports has been judicially confirmed in numerous cases.13 The ALJ and the ITC found that the ITC had in personam jurisdiction over Unipak. That finding was unnecessary, although there is evidence to support such a finding. The subject matter jurisdiction of the ITC over “the importation of articles into the United States”, section 1337(a), and its authority to exclude “the articles concerned”, section 1337(d), are fully adequate. Similarly, the sale in the United States of a foreign manufacturer’s articles, by the owner, importer, or consignee of those articles is clearly within the subject matter jurisdiction of the ITC under section 1337(a). Hence the ITC, upon investigation and determination of a violation, could exclude products sold by a domestic owner/importer/consignee, under its subject matter jurisdiction, whether or not it named the foreign — 104 — manufacturer as a respondent or gave notice to that foreign manufacturer. "When the imported product is alleged to infringe patent claims drawn to a product, the truth of that allegation can he tested by comparison of the product with the claims. When, as here, the imported product is alleged to have been made by a process that infringes patent claims drawn to a process of making the product, determination of the literal truth of that allegation requires comparison of the process employed by the foreign manufacturer with the claims. Thus, in the former instance a product found to be itself an infringement, and all products identical to it, may be excluded, without regard to which foreign manufacturer was exporting it to the United States, and without regard to how it was made. Apparently recognizing that, in the instance of a process claim, the personal involvement of the manufacturer and the process it employed is determinative; that is, that the same product might be made by several manufacturers employinf different processes, Sealed Air named Unipak in the complaint as a respondent, and ITC sent Unipak a copy of the complaint, a notice of its investigation, a copy of its rules of practice, and other papers. Thereafter, the ITC determined that in personam jurisdiction over Unipak was required to support its order excluding Unipak’s products. The ITU's mistaken belief that it required in personam jurisdiction was not determinative of the result, and its decision must be affirmed where the result is correct, notwithstanding its reliance on a wrong ground or a wrong reason. SEC v. Chenery Corp., 318 US 80, 88 (1943). In In re Orion Co., supra, this court noted the broad mandate of Congress to regulate acts of importation stating: So long as such regulation was within constitutional limitations, as we have seen it was, the wisdom of the methods provided by the Congress is a political, not a judicial, question. The importer has no right to complain as to the operation of the machinery, for the act of importation, even to our citizens, is not a vested right, but an act of grace. Buttfield v. Stranahan, 192 US 470 (1904). Because the act does not require personal or in personam jurisdiction over a foreign manufacturer before its goods may be excluded from entry into this country, Unipak’s allegations of inadequate notice and insufficient contacts are irrelevant, and its principal argument, directed solely at a jurisdictional question, must fail. Though its subject matter jurisdiction is sufficient, the ITC is a creature of statute. Hence it must follow established procedures in making a determination that a violation of the act has occurred, and may exclude a product only after completion of such procedures. — 105 — To enable it to carry out its duties in connection with investigations authorized by law, ITC was granted the right to summon witnesses, to take testimony, and to require the production of documents and other evidence pertaining to a pending investigation.14 In addition, Congress authorized the ITC to adopt such reasonable procedures, rules, and regulations as it deems necessary to carry out its functions and duties.15 Accordingly the ITC has duly promulgated rules of practice. Rule 210.21 requires each respondent to affirmatively respond to each allegation in the complaint, and to set forth a concise statement of the facts constituting each ground of defense within 20 days from the date of service of the complaint and notice of investigation.16 More particularly, rule 210.21(b)(1) provides that where it is asserted in defense that an article imported or sold by a respondent is not covered by, or produced under, a process covered by the claims of a U.S. patent involved, a showing of such noncoverage for each involved claim in each U.S. patent in question shall be made by appropriate allegations.17 Rule 210.21(d) addresses the consequences of the failure of a respondent to comply with rule 210.21: (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 investigations, and to authorize the presiding officer, without further notice to that respondent, to find the facts to be 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. Unipak does not contest the validity of the quoted rule provision on “Default”.18 It merely argues that petitioner offered no evidence during the investigation to establish a violation of 19 U.S.C. 1337. As above indicated, where, as here, the subject patent claims relate to a process and the practice of that process is not discernible from an examination of the product, cooperation of the respondent is necessary if the ITC is to carry out, in a normal maimer, its mandate — 106 — to investigate. ITC’s obligation to conduct an investigation and to reach a determination, however, does not and cannot depend upon cooperation from named respondents. There must be, and there are, consequences attendant upon a respondent’s refusal to respond. The record establishes that Unipak denied the ITC its cooperation. Indeed, Unipak arrogantly and intransigent^ refused to participate in the proceeding from which it now appeals. Unipak’s response to Sealed Air’s request for interrogatories was a letter dismissing the interrogatories as “needlessly long, detailed and in many cases irrelevant,” and announcing that such request “should be passed to the Hong Kong courts before requiring a Hong Kong corporation to respond.” Unipak expressly refused to provide any evidence of its manufacturing process in writing. It limited its cooperation to an offer to testify before the ITC at a time and date mutually convenient, Provided, That subject matter it may consider confidential would not be disclosed to Sealed Air or to the respondents, and Provided further, That it be guaranteed the total expenses it would incur in sending representatives to appear before the ITC. Unipak concluded by reserving to itself its right to continue exportation of its products into the United States. In view of Unipak’s failure to respond to the complaint and notice of investigation, coupled with its failure to participate in discovery, the ITC was fully justified in discharging, in the only way it could, its obligation to issue a determination on whether importation and sale of Unipak’s product was in violation of 19 U.S.C. 1337. The alternative would have been to allow Unipak to frustrate the ITC’s investigation, while it continued to ship its products into the United States to the injury of efficiently operated domestic industries. If the ITC were precluded from applying its default rule, when confronted with a foreign manufacturer’s adamant refusal to participate, and refusal to provide indispensable evidence of noninfringement, the ITC’s determination would be postponed indefinitely and the ITC would be deprived of the means to perform its functions under the statute, clearly frustrating the intent of Congress. This court can see no basis for placing that lethal weapon in the hands of foreign manufacturers. Contrary to Unipak’s contentions, the record establishes, prima facie, that the process employed by Unipak infringes the patented process. The allegations in the complaint concerning Unipak’s process, standing naked of answer by Unipak,19 in whose control the evidence of its process resides, are sufficient in themselves. 19 CFR 210.21(d). — 107 — In addition, the ALJ heard direct testimony of Sealed Air’s expert, Fielding, based on his first-hand observations of Unipak’s machinery and process. Fielding described the embossing roller used in Unipak’s machine, the nature of the cooling system as described to him by Unipak personnel, and the relative location of machinery parts, including the dies and the embossing cylinder. Fielding concluded, and explained his conclusion, that Unipak employed the heat transfer process claimed in the Sealed Air patent. He went on to estimate the capacity of the Unipak machinery. Fielding might or might not have withstood rigorous cross-examination. That question is not answerable because Unipak and Poly-bubble, its importer, chose to forego their opportunity to cross-examine the witness or to otherwise test the credibility of the witness during the proceeding below. They cannot now do so before this court. Nor will this court evaluate the testimony or the evidence, or sub-stiti'.te its evaluation for that of the ITC, under such circumstances. Accordingly, we hold the ITC’s determination fully supported by the record before it. Having determined the existence of a violation of the law, that is, of unfair methods of competition or unfair acts in the importation of cert am multicellular film products into the United States, having the effect or tendency to destroy or substantially injure an efficient and economically operated domestic industry, the ITC was faced with two alternatives. The ITC could exclude all such products from entering the United States contingent upon Unipak’s or other foreign manufacturer’s or the importer’s petition for an ITC proceeding to determine whether entry should be allowed.20 That remedy risked unfairness to a foreign manufacturer entitled to entry; for example, one whose process might be found noninfringing, the unfairness being denial of importation for the period necessary to make that finding. Alternatively, the ITC could allow Unipak and other foreign manufacturers to continue to ship, and importers continue to import, all such products into the United States until Sealed Air could file another complaint against Unipak and new complaints against each other such foreign manufacturer or importer, the ITC could institute investigations in each case, and violations could be found. That — 108 — alternative risked unfairness to American industry injured by importation during tbe period necessary to reach those determinations.21 The ITC chose to resolve the issue in favor of American business. In paragraph 3 of its determination, ITC referred to its consideration of the effect of its order upon the public health and welfare, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, and the interests of U.S. consumers. In sum, ITC determined whether the public interest lies in excluding or not excluding the goods involved. There has been no showing that the present ITC order is in any way inconsistent with its mandate. In view of the ITC’s expertise in evaluating the likelihood of injury to American business, and absent a showing of loss of protectable rights, it is not the function of a court to substitute a different remedy of its own design for that chosen by the ITC, or to substitute its view of the public interest for that of the TIC.22 The ITC’s determination and order are affirmed. Footnotes [1] The finding of infringement by Conform is not challenged on this appeal. Unipak’s brief argues ncn-infringement, but that issue is not before us. The standing of the parties to present arguments on the validity of the ’984 patent is fully described in this court’s review of Sealed Air’s motion to dismiss and strike portions of a separate appeal, reported as Tong Seae Industrial Co., Ltd., et al. v. USITC, et al., 67 CCPA 160, decided Jan. 7, 1980. Upon stipulation of the parties, that appeal was dismissed in favor of the present appeal. [2] That temperature at which the mating surfaces of two films so melt together that there is no distinguishable interface between them. [3] Chavannes is coinventor with Fielding on the ’984 patent and on U.S. Patent No. 3,208,898 (Chavannes II), "both assigned to Sealed Air. Chavannes and Fielding are cofounders of Sealed Air Corp., of which Fielding is a director. Fielding testified before the AU on the making of the invention, the prior art, and commercial success. [4] That temperature at which the film to he embossed is sufficiently soft to be readily deformed by application of vacuum and keep its deformed shape upon cooling. [5] That temperature at which the stretched film loses its dimensional stability. [6] Sealed Air says in a reply brief that the embossing temperatures iray be substantially higher than the 218°-226° F. range. That statement conflicts with the assserted advantage in a low embossing temperature and with Fielding’s testimony that the same film in the process of Chavannes I “just self-destructs” when heated above the melting temperature. [7] The Commission held that British Patent No. 908,579 to Bingham duplicates the disclosure of Chavannes I. The Bingham patent is not discussed by the parties on this appeal. [8] U.S. Patent No. 3,208,898, filed Mar. 9, 1960, issued Sept. 28, 1965, assigned to Sealed Air Corp. [9] A tack seal has been described as a seal which could easily peel apart due to failure to completely bring the interface of the films to the fusion temperature. [10] Seated Air's reliance upon Smith v. Snow, 294 U.S. 1 (1934), is misplaced. In Smith, the Supreme Court stated: We may take it that, as the. Statute requires, the specifications just detailed show a way of using the inventor’s method, and that he conceived that particular way described was the best one. But he is not confined to that particular mode of use since the claims of that patent, not its specifications, measure the invention. [Italic ours.] [11] Presumably, the ITC meant to refer to the process encompassed by, or set forth in, or defined by claims 1 and 2, the function of claims being to define the metes and bounds of the claimed invention. Disclosure is the function of the entire specification. [12] U.S. Constitution, article 1, sec. 8, clause 3; see IN re Chain Door Locks, 191 USPQ 272, 279, ITC investigation No. 337-TA-5 (1976). [13] See, for example, Sugarman v. Forbragd, 267 F. Supp. 817 (N.D. Cal. 1967), aff'd 405 F. 2d 1189 (C.A. 9, 1968), which upheld the discretion given to the Secretary cf Health, Education, and Welfare under the Food, Drug, and Cosmetic Act, 21 U.S.C. 381(a) to bar adulterated foods without a formal hearing; see also, The Board of Trustees of the University of Illinois v. United States, 20 CCPA 134, T.D. 45773 (1932), aff'd, 289 U.S. 48 (1932). [14] 19 U.S.C. 1333. [15] 19 U.S.C. 1335. The stringent congressional requirement that ITC complete action on each complaint within 1 year, 19 U.S.C. 1337(h)(1), makes the authority to design and adopt procedures even more critical to the ITC than might be true in agencies upon which no such deadline is imposed. [16] 19 CFR 210.21. [17] 19 CFR 210.21(b)(1). [18] 19 CFR 210.21(d). By failing to participate, Unipak forfeited its right to generate a factual record. Yet ITC must continue its investigation. Sec. 1337(b). Sealed Air introduced evidence of infringement. Unipak introduced no evidence. Under those circumstances, Sealed Air prevails, and the default in 19 CFR 210.21(d) is not a default Judgment based on in personam jurisdiction. It is but a necessary procedural outcome when a respondent elects not to participate in an ITC investigation. [19] Nor did the answer filed by Polybubble respond to the allegation that Unipak's products were produced by the patented process. [20] The opinion (not the order) oí ITC entitles Unipak to petition for further proceedings if it should change its process. Unipak, apparently now willing to appear before the ITC, makes much of the word “changed" saying its existing process has never infringed and that it could not truthfully show that the process had changed. Because its present process is in effect presumed to Toe one covered by claims 1 and 2 of the patent, a showing that its process is not now so covered would reflect a change from that presumed process, even though, as Unipak asserts, its earlier process was not so covered and it did not actually change that earlier process. [21] During the course of such investigations, ITC could allow such products of Unipak and other foreign manufacturers to be imported under bond (19 U.S.C. 1337(e)). The record does not reflect any effort by petitioner for further ITC proceedings or for entry under bond. [22] Nothing in the ITC order precludes a challenge to validity of the patent or the assertion of any other defense in further proceedings. The reference to change of Unipak's process in ITC’s opinion, see n. 19, may or may not presage denial of other defenses to Unipak in a further proceeding. Until such time as Unipak has requested such a proceeding and has been denied a defense, the question of the ITC's authority to limit defenses in such a proceeding is not before us.