OT:RR:BSTC:EOE H348257 WMW
Mr. Paul Brinkman
Kirkland & Ellis LLP
1301 Pennsylvania Ave., N.W.
Washington, DC 20004
Mr. Daniel Valencia
DLA Piper LLP (US)
500 Eighth Street, NW
Washington, DC 20004
VIA EMAIL: [email protected], [email protected],
RE: Ruling Request; U.S. International Trade Commission; Limited Exclusion Order;
Investigation No. 337-TA-1370; Certain Power Converter Modules and Computing
Systems Containing the Same
Dear Mr. Brinkman and Mr. Valencia:
Pursuant to 19 C.F.R. Part 177, the Exclusion Order Enforcement Branch (“EOE Branch”),
Regulations and Rulings, U.S. Customs and Border Protection (“CBP”) issues this administrative
ruling in response to the separately filed requests from Quanta Computer Inc. and Quanta
Computer USA, Inc. (collectively, “Quanta”) and NVIDIA Corporation (“NVIDIA”), both of
which are dated May 16, 2025. The ruling requests were submitted after initial conference calls
and preliminary submissions from Quanta, NVIDIA and Vicor Corporation (“Vicor”), as further
detailed below. The question presented in these ruling requests is whether the articles at issue, as
described in this ruling, are subject to the limited exclusion order (“LEO”) that the U.S.
International Trade Commission (“Commission” or “ITC”) issued in Investigation No. 337-TA-
1370 (“the underlying investigation” or “the 1370 investigation”), based on its finding a violation
of Section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1337 (“Section 337”). The LEO
from the 1370 investigation bars the unlicensed entry for consumption into the United States of
power convert modules and computing systems containing the same, as defined in ¶ 2 of the LEO,
that infringe claim 1 of U.S. Patent No. 9,166,481 (“the ’481 patent”) or claims 1-7 of U.S. Patent
No. 9,516,761 (“the ‘761 patent”) (collectively, “the asserted patents”) and that are manufactured
or imported by or on behalf of (i) Delta Electronics, Inc., Delta Electronics (Americas) Ltd., and
DET Logistics (USA) Corporation; (ii) Cyntec Co., Ltd.; (iii) Hon Hai Precision Industry Co. Ltd.
(d/b/a, Foxconn Technology Group), Foxconn Industrial Internet Co. Ltd., and FII USA Inc. (a/k/a
Foxconn Industrial, Internet USA Inc.); (iv) Ingrasys Technology Inc. and Ingrasys Technology
USA Inc.; and (v) Quanta. See Certain Power Converter Modules and Computing Systems
Containing the Same, Investigation No. 337-TA-1370, EDIS Doc. ID 843485, Limited Exclusion
Order (February 13, 2025).
As noted above, this ruling is based on two separately filed requests pursuant to 19 C.F.R.
Part 177, which the EOE Branch has adjudicated on an inter partes basis. The proceeding involved
the three parties with a direct and demonstrable interest in the question presented by the ruling
requests: (1) Quanta, a ruling requester and respondent in the underlying investigation at the
Commission; (2) NVIDIA, a ruling requester and non-respondent third party that did not
participate in the underlying investigation; and (3) Vicor, the other interested party and
complainant from the underlying investigation as the owner of the asserted patents. See 19 C.F.R.
§ 177.1(c). Furthermore, we note that determinations of the Commission resulting from the
underlying investigation or a related proceeding under 19 C.F.R. Part 210 are binding authority on
CBP and, in the case of conflict, will modify or revoke by operation of law any contrary CBP
ruling or decision pertaining to Section 337 exclusion orders.
Finally, the parties have been asked to identify confidential information, including
information subject to the administrative protective order in the underlying investigation, with
[[red brackets]] in their submissions. See 19 C.F.R. §§ 177.2, 177.8. If there is information in this
administrative ruling not currently bracketed in red [[ ]] that either party believes constitutes
confidential information, and should be redacted from the published ruling, the parties are to
contact CBP within ten (10) working days of the date of this ruling to indicate the same. See, e.g.,
19 C.F.R. § 177.8(a)(3).
I. BACKGROUND
A. ITC Investigation No. 337-TA-1370
The Commission instituted Investigation No. 337-TA-1370 based on a complaint filed by
Vicor. Certain Power Converter Modules and Computing Systems Containing the Same, Inv. No.
337-TA-1370, EDIS Doc. ID 844518, Commission Opinion (Feb. 27, 2025) (“Comm’n Op.”) at
2. The complaint, as supplemented, alleged a violation of Section 337 by reason of infringement
of certain claims of the ‘481 patent, the ‘761 patent, and the ‘950 patent. Id. The notice of
investigation named as respondents Delta Electronics, Inc. of Taipei, Taiwan, Delta Electronics
(Americas) Ltd. of Fremont, California, and Delta Electronics (USA) Inc. of Plano, Texas; Cyntec
Co., Ltd. of Hsinchu, Taiwan; Quanta Computer Inc. of Taoyuan City, Taiwan, Quanta Cloud
Technology Inc. of Taoyuan City, Taiwan, Quanta Cloud Technology USA LLC of San Jose,
California, and Quanta Computer USA, Inc. of Fremont, California; Hon Hai Precision Industry
Co. Ltd. (d/b/a Foxconn Technology Group) of Taipei City, Taiwan, Foxconn Industrial Internet
Co. Ltd. of Shenzhen, China, FII USA Inc. (a/k/a Foxconn Industrial Internet USA Inc.) of
Milwaukee, Wisconsin, Ingrasys Technology Inc. of Taoyuan City, Taiwan, and Ingrasys
Technology USA Inc. of San Jose, California. Id. The Commission’s Office of Unfair Import
Investigations (“OUII”) was named as a party in the investigation. Id.
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On September 27, 2024, the Administrative Law Judge (“ALJ”) issued a final initial
determination (“FID”) finding a violation of Section 337. Id. at 3. Specifically, the ALJ
determined that a violation of Section 337 occurred in the importation into the United States, the
sale for importation, or the sale within the United States after importation, of the accused products
that infringed the ‘481 and ‘761 patents, but not as to the ‘950 patent. Id. On December 4, 2024,
the Commission issued a notice in which it determined to review the FID in part and requested
submissions responding to the Commission’s issues under review and on remedy, the public
interest, and bonding. Id. at 5.
In the limited exclusion order, the Commission ordered that “[p]ower converter modules
and computing systems containing the same that infringe one or more of claim 1 of the ’481 patent
and claims 1-7 of the ’761 patent and are manufactured abroad by, or on behalf of, or imported by
or on behalf of Respondents or any of their affiliated companies, parents, subsidiaries, agents, or
other related business entities, or their successors or assigns, are excluded from entry for
consumption into the United States, entry for consumption from a foreign-trade zone, or
withdrawal from a warehouse for consumption, for the remaining terms of the Asserted Patents,
except under license from, or with the permission of, the patent owner or as provided by law.”
Certain Power Converter Modules and Computing Systems Containing the Same, Inv. No. 337-
TA-1370, EDIS Doc. ID 843485, Limited Exclusion Order (February 13, 2025) at 2.
The Commission defined the articles covered by the limited exclusion order as “power
converter modules used in data center server, artificial intelligence and cloud computing systems,
to power artificial intelligence (‘AI’) accelerators, tensor processing units (‘TPU’), graphical
processing units (‘GPU’) and central processing units (‘CPU’), and computing systems containing
the same. Id. at 3.
B. Articles At Issue
According to NVIDIA, the “NVIDIA products that are the subject of this request include,
at least, the products listed below (‘NVIDIA Blackwell Products’):
o ‘Blackwell’ is the name of the architecture of a Graphics Processing Unit (‘GPU’).
NVIDIA Blackwell GPUs may be included on ‘mezzanine’ boards marketed as ‘SXM6’
or [[ ]] boards. Unlike the products accused in the 1370 Investigation, the GPU
mezzanine boards do not use power converter modules. Instead, power conversion is
performed by circuitry distributed on the GPU mezzanine board. The GPU mezzanine
board does not have a power converter module at all, let alone one from Delta or Cyntec.
o The GPU mezzanine boards are designed to be plugged into baseboards. For example, a
Blackwell baseboard includes eight (8) GPU mezzanine boards. The baseboards likewise
do not contain any power converter modules, let alone any made by Delta or Cyntec.
o NVIDIA also designs server boards with Grace CPUs and Blackwell GPUs that work with
a [[ ]] Power Delivery Board. As with the other NVIDIA Blackwell Products put at
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issue by Vicor, these Power Delivery Boards do not contain power converter modules, let
alone any made by Delta or Cyntec.”
NVIDIA Ruling Request at 2. Additionally, these “Nvidia Blackwell Products [are] manufactured
and/or imported by Quanta.” Quanta Ruling Request at 1. While the parties dispute several points
in this inter partes proceeding, there appears to be no dispute that the NVIDIA Blackwell Products
at issue in this ruling request do not contain power converter modules manufactured by or on behalf
of Delta or Cyntec. See NVIDIA Ruling Request at 6 (“The NVIDIA Blackwell Products do not
use the infringing Delta or Cyntec power converter modules.”); Quanta Ruling Request at 6
(“Vicor does not define what it means by Nvidia’s ‘new Blackwell computing systems,’ but Nvidia
presumes from context that Vicor refers to its SXM6 mezzanine boards and B200 server boards
(‘Nvidia Blackwell Products’), neither of which contain Delta or Cyntec power converter
modules.”); Vicor Response at 2 (“[T]he LEO in the 1370 Investigation is not limited to Quanta’s
(and Foxconn’s) computing systems that contain only the adjudicated Delta and Cyntec
modules.”).
II. PRELIMINARY SUBMISSIONS
Before establishing this inter partes proceeding, the EOE Branch held an initial round of
conference calls with Vicor, Quanta, and NVIDIA based on their joint request. These preliminary
conference calls allowed each side to discuss certain issues, provide the relevant factual
background, and identify differing views regarding the proper administration of the LEO. For
instance, on April 3, 2025, the EOE Branch held a conference call and, at its conclusion, requested
that Vicor provide its views in writing by the following day. Vicor submitted a letter to the EOE
Branch on April 4, 2025, in which Vicor disputed NVIDIA’s argument that the articles at issue
“do not fall within the scope of the limited exclusion order in the 1370 Investigation because
[Nvidia Blackwell Products] replace Respondent Delta’s power converter modules with power
converters the ITC did not have an opportunity to adjudicate in the 1370 Investigation.” Victor
Preliminary Submission at 1. In Vicor’s view, “Nvidia’s view is erroneous under Commission
and Federal Circuit precedent.” Id.
On April 9, 2025, Quanta submitted a letter to the EOE Branch in response to Vicor.
Quanta argued “that Vicor, the ALJ and the Commission consistently and repeatedly limited the
scope of the 1370 investigation and the products subject to exclusion to Delta and Cyntec power
converter modules ‘Accused Products’) and computing systems containing the same (‘Accused
Systems’)—not computing systems containing other manufacturers’ power converter modules.”
Quanta Preliminary Response at 4.
NVIDIA also submitted a letter to the EOE Branch on April 9, 2025, stating its view that
“Vicor mistakenly argues that NVIDIA’s ‘new Blackwell computing systems are within the scope
of the LEO in the 1370 Investigation and these unlicensed computing systems are barred from
entry into the United States by Respondents.’ Vicor bases its argument solely on the opinions in
Certain Graphics Sys., Components Thereof, and Digital Televisions Containing the Same, Inv.
No. 337-TA-1318 (‘Graphics Systems’). But those opinions recognize that the scope of an LEO
is limited to ‘all products of named respondents within the scope of the investigation that are
covered by the patent claims as to which a violation has been found.’ Graphics Systems, Comm’n
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Op. on Pet. for Recon. at 17-18; see also Kyocera Wireless Corp. v. Int’l Trade Comm’n, 545 F.3d
1340, 1358 (Fed. Cir. 2008) (‘Section 337 permits exclusion of the imports of non-respondents
only via a general exclusion order’).” NVIDIA Preliminary Response at 1.
On April 14, 2025, Vicor submitted another letter to the EOE Branch responding to
arguments Quanta and NVIDIA raised in their respective letters from April 9, 2025. In particular,
Vicor stated that, as with the parties in Graphics Systems, Quanta is a named respondent
manufacturing the Blackwell computing systems, which places them within scope of the LEO.
Vicor Letter to EOE Branch, dated April 14, 2025, at 2. On April 15, 2025, NVIDIA submitted a
letter to the EOE Branch to address certain points, highlighting its view that Vicor “does not
dispute that the Commission’s determination in Certain Graphics Sys., Components Thereof, and
Digital Televisions Containing the Same, Inv. No. 337-TA-1318 (“Graphics Systems”) is
distinguishable from and did not overrule the Commission’s Advisory Opinion in Certain GPS
Devices and Products Containing Same, Inv. No. 337-TA-602 (“GPS Devices”). NVIDIA Letter
to EOE Branch, dated April 15, 2025, at 1.
On April 17, 2025, the EOE Branch held another conference call with Vicor, Quanta, and
NVIDIA to discuss various procedural issues arising from the submissions to that point. Following
the conference call, the EOE Branch sent an email to the parties reiterating the issues raised during
the conference call and made the following request:
As discussed, the EOE Branch requests the views of the parties on the following three
procedural questions. As a reminder, the parties should not discuss or present any
arguments on the merits question regarding admissibility of the articles at issue.
(1) Should the EOE Branch or the ITC address admissibility of the articles at issue
and, if the latter, what should CBP do in the interim with respect to any
importation of the articles at issue?
(2) If the EOE Branch addresses admissibility of the articles at issue, which party
should request the ruling and initiate the inter partes proceeding under 19 CFR
177?
(3) If the EOE Branch addresses admissibility of the articles at issue, what should
be the procedural schedule for the inter partes proceeding, taking into account
the different grounds or legal theories related to admissibility that have been
discussed in the submissions to this point or mentioned during the conference
call?
EOE Branch Email to Parties, dated April 17, 2025.
On April 21, 2025, Vicor submitted a response to the EOE Branch. In Vicor’s view, either
the EOE Branch or the ITC could address the admissibility of the articles at issue and that either
Quanta or NVIDIA should be the party that submits a ruling request to initiate an inter partes
proceeding under 19 C.F.R. Part 177. Vicor Procedural Submission at 1-3. Vicor also proposed
a procedural schedule. Id. at 4. On the same day, NVIDIA submitted a response to the EOE
Branch, stating that either the ITC or the EOE Branch could reach the admissibility determination
and requested expedited treatment for any inter partes proceeding under 19 C.F.R. Part 177.
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NVIDIA Procedural Submission at 2. Furthermore, NVIDIA stated that Vicor should be the party
that submits the ruling request under Part 177. Id. NVIDIA likewise provided a procedural
schedule. Id. at 3. Finally, Quanta submitted a response to the EOE Branch, indicating that “[i]t
would be preferable to downstream Respondents for the Commission to clarify that the LEO does
not apply to downstream Respondents’ computing systems that do not contain any Respondents’
power converter modules, particularly if done in a way that would be directly appealable to the
Federal Circuit (i.e. in a modification proceeding).” Quanta Procedural Submission at 1. As such,
the “downstream Respondents suggest[ed] that the parties submit this issue to the ITC for
determination only if CBP agrees not to exclude this category of products in the interim. If CBP
determines otherwise, downstream Respondents request that the EOE Branch decide the legal issue
through a formal 177 ruling on an expedited basis.” Id. (emphasis in original). As with the other
parties, Quanta provided a procedural schedule for any inter partes proceeding. Id. at 2.
Taking the parties’ procedural submissions into consideration, the EOE Branch responded
by email on May 12, 2025, with the following:
Dear Counsel,
The Exclusion Order Enforcement (“EOE”) Branch has reviewed the procedural
submissions (filed on April 21, 2025) from (1) Vicor Corporation (“Vicor”), the
complainant and patent owner in Investigation No. 337-TA-1370 (“the underlying
investigation”) at the U.S. International Trade Commission (“Commission” or
“ITC”); (2) Quanta Computer Inc. and Quanta Computer USA, Inc. (“Quanta”) and,
to the extent relevant to the import transactions at issue, Foxconn Industrial Internet
Co. Ltd. (“Foxconn”), the respondents in the underlying investigation that
manufacture downstream products; and (3) NVIDIA Corporation (“NVIDIA”),
who was not a party in the underlying investigation but whose Blackwell computing
systems (also referred to as the Blackwell boards) (“articles at issue”) are at the
center of this dispute. Based on its review of the procedural submissions, and
taking into consideration the other submissions from the parties and companies
above filed before the procedural submissions, the EOE Branch provides the
following in response.
***
A party seeking to import articles potentially subject to an exclusion order issued
by the Commission under Section 337 of the Tariff Act of 1930, as amended, 19
U.S.C. § 1337 (“Section 337”), has the burden to establish noninfringement, or that
the articles are otherwise outside the exclusion order’s scope, as a condition of
entry. See Hyundai Elecs. Indus. Co. v. Int’l Trade Comm’n, 899 F.2d 1204, 1210
(Fed. Cir. 1990); see also Certain Road Construction Machines and Components
Thereof, Inv. No. 337-TA-1088 (Modification), Commission Opinion, Doc. ID
719534 (Sept. 14, 2020) at 12-13 (“Consistent with the Commission’s long-
standing practice, the scope of the [exclusion order] at issue here includes all [ ]
infringing road construction machines and components thereof, whether they have
been adjudicated in the investigation or were later introduced.”) (emphasis
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added). When an importer fails to carry this burden to establish admissibility, U.S.
Customs and Border Protection (“CBP”) will, as directed by the Commission,
exclude the articles from entry for consumption.
With respect to unadjudicated articles in the Section 337 context, the Commission
has confirmed the availability of proceedings for parties to carry the burden
described above and obtain determinations whether such unadjudicated articles are
subject to an exclusion order. Specifically, if a party “wish[es] to import . . .
products that have not been adjudicated by the Commission, [that party] may seek
an advisory opinion or file a petition for a modification proceeding from the
Commission, or a Part 177 ruling from CBP, regarding whether an article is subject
to the exclusion order.” Certain Robotic Vacuum Cleaning Devices and
Components Thereof Such as Spare Parts, Inv. No. 337-TA-1057, Commission
Opinion, Doc. ID 665703 (Feb. 1, 2019) at 60 (citing 19 C.F.R. §§ 210.76, 210.79
and 19 C.F.R. § 177).
Significantly, the U.S. Court of Appeals for the Federal Circuit has held that
“import proceedings” such as those above are “the appropriate procedural vehicle
for [an importer’s] arguments to be heard” but this does not “stand for the
proposition that [an importer] would have been entitled to import its products prior
to the conclusion of any such import proceedings.” Certain Road Construction
Machines and Components Thereof, Inv. No. 337-TA-1088 (Modification),
Commission Opinion, Doc. ID 719534 (Sept. 14, 2020) at 30 (emphasis added)
(citing Yingbin-Nature (Guangdong) Wood Indus. Co. v. Int’l Trade Comm’n, 535
F.3d 1322, 1334 (Fed. Cir. 2008)).
However, without displacing the importer’s burden imposed by a Section 337
exclusion order, the EOE Branch may determine at what point during an inter
partes proceeding under 19 C.F.R. § 177 to initiate enforcement at the border with
respect to any shipments attempting to make entry for consumption. In other
words, “the EOE Branch may, in its discretion, . . . take into consideration the
question whether the articles at issue include new or different features or
functionalities … that are relevant to the asserted claims of the underlying patents
when determining the point at which CBP should prevent the entry for consumption
of the articles at issue that include these new or different features or functionalities
until they are found not to infringe. In appropriate cases, and depending on the
relevant facts, that point could be at a preliminary stage in an inter partes
proceeding, during the pendency of the proceeding, or at its conclusion.” CBP
HQ Ruling H324813 (dated June 3, 2022) at 38 (internal citations and quotation
marks omitted) (emphasis added). See also Trump v. United States, 603 U.S. 593,
620 (2024) (“Investigative and prosecutorial decisionmaking is ‘the special
province of the Executive Branch[.]’”) (quoting Heckler v. Chaney, 470 U. S. 821,
832, (1985)); see also Mylan Labs. Ltd. v. Janssen Pharmaceutica, N.V., 989 F.3d
1375, 1382 (Fed. Cir. 2021) (“[A]gencies generally are free . . . to choose not to
initiate enforcement proceedings.”) (citing Heckler, 470 U.S. at 830-32).
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As delineated in the submissions (procedural or otherwise) to this point, the
admissibility question presented in this dispute consists of three theories
undergirding the contention that the articles at issue are not subject to the limited
exclusion order from the underlying investigation. The first theory is that, since it
appears undisputed that the Blackwell boards contain upstream components made
by a third party who was not a respondent in the underlying investigation, and is
not related to any such respondent, the articles at issue fall outside the scope of the
limited exclusion order based on the governing Section 337 precedent (as cited and
discussed in the submissions and noted below). The second theory is that the
Blackwell computing systems do not contain power converter modules as defined
in the limited exclusion order and for purposes of the scope of investigation. The
third theory is that the articles at issue do not infringe the asserted patents from the
limited exclusion order.
The EOE Branch has determined that this admissibility question should be
addressed with an inter partes proceeding under 19 C.F.R. § 177 and that the ruling
request should be submitted by Quanta/Foxconn or NVIDIA as either (i) the foreign
manufacturer of the articles at issue, (ii) the importer of record for those articles, or
(iii) the company with a direct and demonstrable interest in the question presented
by the ruling request (i.e., the admissibility of the articles at issue). See 19 C.F.R.
§ 177.1(c). The EOE Branch defers to Quanta/Foxconn or NVIDIA regarding
which company is best positioned, given the legal and factual aspects of this dispute
and the import transactions at issue, to submit the ruling request or if they should
submit the ruling request jointly.
The ruling request, and the other submissions provided for in the first procedural
schedule below, should only address the first theory above as related to
admissibility of the articles at issue. Specifically, the ruling request and the other
submissions should address the factual description of the articles at issue and the
import transactions related to them in sufficient detail and address whether the
Commission’s Advisory Opinion from Certain GPS Devices and Products
Containing Same, Inv. No. 337-TA-602, Doc. ID 423431 (April 20, 2010), or any
of the Commission Opinions from Certain Graphics Systems, Components
Thereof, and Digital Televisions Containing The Same, Inv. No. 337-TA-1318,
e.g., Doc. ID 814860 (Feb. 23, 2024) and Doc. ID 822069 (May 22, 2024), or any
other binding precedent governs admissibility of the articles at issue.
The EOE Branch has decided to establish a procedural schedule for adjudication of
the first theory on an expedited basis, as set forth below. Furthermore, the EOE
Branch has found that this constitutes an appropriate case where the point at which
to initiate any enforcement at the border with respect to any shipments of the
articles at issue would be no sooner than the adjudication of this theory with a ruling
under 19 C.F.R. § 177 on the question presented above, assuming that
Quanta/Foxconn or NVIDIA actually submits a ruling request under 19
C.F.R. § 177 by close of business (11:59pm eastern time) in conformity with
the procedural schedule below. If a ruling request is not submitted by that
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date, the EOE Branch will initiate enforcement measures at the border as of
that date.
As noted above, the EOE Branch has established this procedural schedule on an
expedited basis and believes this is warranted given that the issue under
consideration is narrow and primarily legal in nature, and because the parties have
already provided substantive views in previous submissions concerning this issue,
which can be supplemented, as appropriate.
Procedural Schedule for the First Theory Related to Admissibility of the
Articles at Issue
Event Deadline
Quanta/Foxconn or
May 16,
NVIDIA Ruling
2025
Request
Vicor Response May 22,
2025
Quanta/Foxconn or May 29,
NVIDIA Reply 2025
EOE Branch Target June 6,
Date for Ruling 2025
Furthermore, in its procedural submission, Vicor noted that it would need
additional time to address the second theory related to admissibility, specifically
that the Blackwell computing systems do not contain power converter modules as
defined in the limited exclusion order and for purposes of the scope of
investigation. Accordingly, the EOE Branch has decided to establish a procedural
schedule for adjudication of the second theory with a ruling under 19 C.F.R. § 177
on the question presented, as set forth below. For this theory, Vicor may rely on
the previous submissions related to this dispute and, if needed, may obtain
additional information from the other side during the discovery period in the
procedural schedule below. Moreover, the ruling request noted above is
understood to incorporate these previous submissions and the arguments made
therein to the extent they pertain to the second theory.
The EOE Branch recognizes that the outcome of the ruling on the first theory may
obviate the need to address the second theory in this inter partes
proceeding. Moreover, depending on that outcome and taking into consideration
Vicor’s submission below on the second theory if found to be appropriate, the EOE
Branch will reevaluate the question regarding the point at which to initiate any
enforcement at the border with respect to any shipments of the articles at issue.
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Procedural Schedule for the Second Theory Related to Admissibility of the
Articles at Issue
Event Deadline
Quanta/Foxconn or As soon as
NVIDIA Makes a possible
Sample of Articles and no
at Issue Available later than
Within the United May 19,
States 2025
Vicor Discovery June 12,
and Submission 2025
Quanta/Foxconn or June 23,
NVIDIA Response 2025
Vicor Reply June 30,
2025
EOE Branch Target July 11,
Date for Ruling 2025
Lastly, the EOE Branch does not establish a procedural schedule at this time in this
inter partes proceeding with respect to the third theory for admissibility of the
articles at issue. However, Quanta/Foxconn or NVIDIA may request a separate
ruling request under 19 C.F.R. § 177 at any time regarding this issue and propose a
procedural schedule for the question presented on patent infringement. As
confirmation, for purposes of the third theory related to patent infringement, the
importer will not have carried its burden to establish admissibility until the articles
at issue are determined not to infringe.
Despite the potential for a separate ruling request, the procedural schedules set forth
above will remain in place unless the parties jointly seek to modify them and the
EOE Branch agrees to the proposed modifications. Nonetheless, the EOE Branch
retains the authority, at its discretion and with notice to the parties, to modify any
procedural schedule as warranted.
If the parties have any questions, the EOE Branch is available for a conference call
with the parties this week.
EOE Branch Email to Parties, dated May 12, 2025 (emphasis in the original).
III. RULING REQUESTS AND COMMISSION CONFIRMATION
Following the EOE Branch’s email above, Quanta and NVIDIA submitted separate ruling
requests on May 16, 2025, and served copies on Vicor. In its ruling request, NVIDIA framed the
legal issue as whether “the LEO that issued in the 1370 Investigation, which exclusively concerned
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certain Delta and Cyntec power converter modules and systems containing those products, cover
NVIDIA’s Blackwell products even though (1) NVIDIA was not named as a respondent, (2) the
NVIDIA Blackwell Products do not contain Delta and Cyntec power converter modules, and (3)
the NVIDIA Blackwell Products were not involved in the 1370 Investigation[.]” NVIDIA Ruling
Request at 5. To this, NVIDIA argues, inter alia, that “GPS Devices addresses the exact factual
scenario presented in this ruling request[,]” NVIDIA Ruling Request at 5, that “GPS Devices is
still good law” and was not overruled by Graphic Systems, NVIDIA Ruling Request at 6, and that
Graphics Systems do[es] not govern th[e] situation” presented by this ruling request. NVIDIA
Ruling Request at 6. Consistent with that view, Quanta argued that “[t]he Commission’s advisory
opinion in Certain GPS Devices & Prods. Containing Same, Inv. No. 337-TA-602, April 20, 2010
(“GPS Devices”) is directly on point with the facts of the -1370 Investigation and compels the
conclusion that the Nvidia Blackwell Products are not subject to the LEO here.” Quanta Ruling
Request at 7.
On May 22, 2025, Vicor submitted a response to the ruling requests from NVIDIA and
Quanta, in which Vicor stated that “[t]he Commission in Graphics Systems twice rejected
Respondents’ arguments, relying on the Advisory Opinion in GPS Devices (602), for narrowing
the remedial orders, and Respondents’ same arguments here should be rejected for the same
reasons.” Vicor Response at 2. According to Vicor, the 1370 investigation is not limited to Delta
and Cyntec power converter modules, see Vicor Response at 2-7, and that Graphics Systems, as
the governing precedent, confirms this view. See Vicor Response at 7-12. On May 29, 2025,
Quanta and NVIDIA submitted replies to the response from Vicor. Both submissions reiterated
that GPS Devices, and not Graphics Systems, is the relevant Commission precedent to apply and
the reasons that underscore this understanding.
On June 8, 2025, the EOE Branch submitted the letter below to the ITC:
The Exclusion Order Enforcement Branch (“EOE Branch”), Regulations
and Rulings, Office of Trade, U.S. Customs and Border Protection, is writing to
request confirmation or clarification from the U.S. International Trade Commission
(“Commission”) with respect to the scope and applicability of the limited exclusion
order that the Commission issued in Certain Power Converter Modules and
Computing Systems Containing the Same, Investigation No. 337-TA-1370 (“the
underlying investigation”). Specifically, the EOE Branch is requesting
confirmation or clarification whether the limited exclusion order extends to
downstream products, as described in the underlying investigation,1 that are
manufactured or imported by certain respondents found to infringe the asserted
patents, when those downstream products incorporate unadjudicated articles
consisting of upstream components from non-respondent third parties instead of
power converter modules from the upstream respondents (i.e., Delta Electronics,
Inc. of Taipei, Taiwan, Delta Electronics (Americas) Ltd. of Fremont, California,
and Delta Electronics (USA) Inc. of Plano, Texas (collectively, “Delta”) and
Cyntec Co., Ltd. of Hsinchu, Taiwan (“Cyntec”)).
___________________
1 See, e.g., Certain Power Converter Modules and Computing Systems
Containing the Same, Inv. No. 337-TA-1370, EDIS Doc. ID 844518,
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Commission Opinion (Feb. 26, 2025) at 124 (“The RD recommends three
different rates for purposes of bonding. RD at 204-05. First, because neither
Vicor nor OUII sought a bond as to Cyntec, the RD recommends no bond as
to Cyntec’s accused modules. Id. at 205. Second, the RD recommends a [[ ]]
percent bond for Delta products, the rationale being that Vicor and Delta
directly compete, and [[ ]] percent represents the price differential between
Vicor’s and Delta’s products. Id. at 204. Third, the RD finds that the
downstream products sold by the remaining respondents are sold at
‘different levels of commerce,’ making determination of a price differential
impractical. Id. at 205. The RD thus recommends a 100 percent bond for the
remaining products.”) (emphasis added).
The Commission instituted this investigation on August 17, 2023, based on
a complaint filed by Vicor Corporation (“Vicor”). See Certain Power Converter
Modules and Computing Systems Containing the Same, Inv. No. 337-TA-1370,
EDIS Doc. ID 844518, Commission Opinion (Feb. 26, 2025) (“Comm’n Op.”) at 2
(citing 88 Fed. Reg. 56050-51 (Aug. 17, 2023)). The complaint, as supplemented,
alleged violations of section 337 in the importation into the United States, the sale
of importation, and the sale within the United States after importation of (i) certain
power converter modules and (ii) computing systems containing the same by reason
of infringement of claim 1 of the U.S. Patent No. 9,166,481 (“the ’481 patent”);
claims 1-7 of U.S. Patent No. 9,516,761 (“the ’761 patent”), and claims 9, 13, 14,
and 33-38 of U.S. Patent No. 10,199,950 (“the ’950 patent”). Id.
The Commission’s notice of investigation based on the complaint named as
respondents Delta and Cyntec, as well as downstream product manufacturers or
importers Quanta Computer Inc. of Taoyuan City, Taiwan, Quanta Cloud
Technology Inc. of Taoyuan City, Taiwan, Quanta Cloud Technology USA LLC
of San Jose, California, and Quanta Computer USA, Inc. of Fremont, California
(collectively, “Quanta”) and Hon Hai Precision Industry Co. Ltd. (d/b/a Foxconn
Technology Group) of Taipei City, Taiwan, Foxconn Industrial Internet Co. Ltd. of
Shenzhen, China, FII USA Inc. (a/k/a Foxconn Industrial Internet USA Inc.) of
Milwaukee, Wisconsin, Ingrasys Technology Inc. of Taoyuan City, Taiwan, and
Ingrasys Technology USA Inc. of San Jose, California (collectively, “Foxconn”).
Comm’n Op. at 2.
Significantly, the accused products at issue in the underlying investigation
were “power converter modules used in data center server, artificial intelligence
and cloud computing systems, to power artificial intelligence (‘AI’) accelerators,
tensor processing units (‘TPU’), graphical processing units (‘GPU’) and central
processing units (‘CPU’), and computing systems containing the same.” Comm’n
Op. at 6 (citing 88 Fed. Reg. 56050). The accused power converter modules in the
underlying investigation were manufactured by Delta and Cyntec (the “Accused
Modules”). See Certain Power Converter Modules and Computing Systems
Containing the Same, Inv. No. 337-TA-1370, EDIS Doc. ID 834565, Initial
Determination of Violation of Section 337 and Recommended Determination on
Remedy and Bond (Sept. 27, 2024) (“FID”) at 7. The remaining respondents
incorporated one or more of the Accused Modules into their computing systems
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(“the “Accused Systems”), which constitute the downstream products referenced
above. Id.
Ultimately, the Commission found, inter alia, that all of the Accused
Modules infringed the asserted claims of the ’761 patent. See Comm’n Op. at 1.
Accordingly, the Commission determined there was a violation of section 337 and
issued a limited exclusion order directed to the respondents and that imposed
different bond amounts for the infringing Delta modules, the infringing Cyntec
modules, and “all other infringing products” (i.e., the downstream products
incorporating an infringing module) when “imported during the Presidential review
period.” Id.
In other words, the Commission found the downstream products to infringe
because they incorporated an infringing module from Delta or Cyntec and those
modules were infringing because they satisfied all of the limitations in the asserted
claims of the ’761 patent included in the limited exclusion order. See FID at 3
(“Respondent Quanta Computer Inc. purchases the accused Delta power converter
modules outside the United States and then incorporates them into the accused
Quanta systems and/or components of the accused Quanta systems, which then are
sold for importation into the United States.”); at 9 (“Vicor accuses over 100 Quanta
Accused Systems of infringement, and these are enumerated in the parties’
stipulation, along with the Delta Accused Module incorporated into them. . . . It
appears, however, that 13 of the Quanta Accused Systems are no longer at issue
because Vicor no longer accuses their incorporated Accused Module, the Delta
Q50SN12050RND, of infringement. . . . Vicor also accuses several systems made
and/or imported by the other respondents of infringement, and these Accused
Systems are also enumerated in the parties’ stipulation, although here, too, one of
the Accused Systems (the Ingrasys G48C) is no longer at issue because its
incorporated Accused Module (the Q54SH120A1NCDHR) is no longer accused
of infringement.”) (emphasis added); at 86 (“As noted, the parties agree that two
products, Delta’s U50SU4P162PMAR and U50SU4P180PMDAL, are
representative of all Delta Accused Modules for purposes of infringement of the
761 patent. See EDIS Doc. ID 816661 at 2. The parties also agree that certain
systems of Quanta, Ingrasys, and FIT USA containing one of the two Delta
representative modules are representative of other Accused Systems of Quanta,
Ingrasys, and FIT USA.”) (emphasis added); and at 90 (“Accordingly, Vicor has
shown infringement of claims 1-7 of the 761 patent by all Accused Products.”).
In the context of a request for an administrative ruling under 19 C.F.R. Part
177, an issue has arisen with respect to the scope and applicability of the
Commission’s limited exclusion order given the findings from the underlying
investigation and in view of other Commission precedent. See Certain Graphics
Systems, Components Thereof, and Digital Televisions Containing The Same, Inv.
No. 337-TA-1318, EDIS Doc. ID 814860, Commission Opinion (Feb. 23, 2024);
see also Certain Graphics Systems, Components Thereof, and Digital Televisions
Containing The Same, Inv. No. 337-TA-1318, EDIS Doc. ID 822069, Commission
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Reconsideration Opinion (May 22, 2024); but see Certain GPS Devices and
Products Containing Same, Inv. No. 337-TA-602, EDIS Doc. ID 423431, Advisory
Opinion (Apr. 20, 2010).
Specifically, the EOE Branch is seeking confirmation or clarification
whether the Commission’s limited exclusion order extends to downstream products
of respondents when those products instead incorporate upstream components from
non-respondent third parties that were not accused of infringement or found to
violate section 337 in the underlying investigation, such that those downstream
products should be refused entry until adjudicated not to infringe or otherwise
found not to be subject to the limited exclusion order or if the substitution of
upstream components from non-respondent third parties automatically takes the
downstream products outside the scope of the limited exclusion order. Given the
pending ruling request referenced above, the EOE Branch requests the favor of the
Commission’s response, if possible, by June 20, 2025. Thank you for your
consideration and please let the EOE Branch know if additional information is
needed in connection with this request for confirmation or clarification.
EOE Branch Letter to the ITC, dated June 8, 2025.
On June 24, 2025, the ITC responded to the EOE Branch with the following letter:
Thank you for your letter of June 8, 2025, seeking information regarding
the scope of the limited exclusion order issued in the above-referenced
investigation. Specifically, you seek “confirmation or clarification whether the
Commission’s limited exclusion order extends to downstream products of
respondents when those products instead incorporate upstream components from
non-respondent third parties that were not accused of infringement or found to
violate section 337 [of the Tariff Act of 1930, as amended (19 U.S.C. § 1337)] in
the underlying investigation[.]”
The Commission has a “long-standing practice [of] directing its remedial
orders to all products covered by the patent claims as to which a violation has been
found, rather than limiting its orders to only those specific models selected for the
infringement analysis.” Certain Graphic Sys., Components Thereof, & Digital
Televisions Containing the Same (“Graphic Sys.”), Inv. No. 337-TA-1318,
Comm’n Op. at 59 (Feb. 23, 2024) (alterations in original); see also Graphic Sys.,
Comm’n Op. on Reconsideration at 14 (May 22, 2024) (collecting cases). In other
words, the Commission’s orders extend to “all products of named respondents
within the scope of the investigation that are covered by the patent claims as to
which a violation has been found, and [are not limited] to only those products
actually adjudicated as infringing in the investigation.” Graphic Sys., Comm’n Op.
on Reconsideration at 17-18. The Federal Circuit and its predecessor court have
long upheld this interpretation as to the scope of Commission exclusion orders. See,
e.g., Hyundai Elecs. Indus. Co. v. Int’l Trade Comm’n, 899 F.2d 1204, 1210 (Fed.
Cir. 1990) (affirming the Commission’s authority to issue remedial orders that
14
“effectively shifts to would-be importers of potentially infringing articles, as a
condition of entry, the burden of establishing noninfringement”).
Consistent with this approach, the Commission has declined to
automatically exempt from limited exclusion orders products that are within the
scope of an investigation but were not adjudicated in the investigation. For
example, in Graphic Systems, the plain language description of the accused
products defined the scope of the investigation as “(a) integrated circuits that
incorporate one or more graphics processing units (GPUs); (b) printed circuit board
assemblies containing the same; and (c) digital televisions containing the same.”
Comm’n Op. on Reconsideration at 3. The complainant alleged infringement as to
GPUs supplied only by non-party ARM, Inc. Id. at 5. “[P]roducts containing non-
ARM GPUs were not adjudicated in the investigation as those products were not
accused by [complainant] and [respondent] had not sought non-infringement
determinations of such products.” Id. at 16. The Commission rejected the
respondent’s request to limit the scope of the limited exclusion order to GPUs
supplied by ARM in its final determination and again upon respondent’s motion for
reconsideration, explaining that “[u]nder Commission and Federal Circuit
precedent, there is no basis to limit the [limited exclusion order] solely to the
adjudicated products with ARM GPUs or otherwise exempt from the [limited
exclusion order] products with non-ARM GPUs that are within the scope of the
investigation unless and until such products have been adjudicated as non-
infringing.” Id.; accord Graphic Sys., Comm’n Op. at 59.
Accordingly, we confirm that the Commission’s limited exclusion order
in this investigation is not limited to only downstream products of respondents
that include the upstream components specifically adjudicated to be infringing.
Rather, the order extends to downstream products of respondents within the
scope of the investigation, that infringe the patents specified in the exclusion
order, even if those products incorporate upstream components from non-
respondent third parties that that were not adjudicated as infringing in the
underlying investigation.
ITC Letter to the EOE Branch, dated June 24, 2025 (emphasis added).
Therefore, based on the Commission’s confirmation, an exclusion order under
Section 337 applies to downstream products of a respondent, such as Quanta, “even if those
products incorporate upstream components from non-respondent third parties that [] were
not adjudicated,” such as the NVIDIA Blackwell Products at issue in this inter partes
proceeding, if the products (i) infringe the asserted patents from the exclusion order and
(ii) are within the scope of investigation.
IV. HOLDING
Accordingly, the NVIDIA Blackwell Products at issue in this inter partes
proceeding are subject to exclusion from entry unless and until they are found, under the
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second theory referenced above, not to be subject to the scope of the investigation as
defined in the limited exclusion order.
Sincerely,
Dax Terrill
Chief, Exclusion Order Enforcement Branch
CC: Mr. Louis Mastriani
Polsinelli
1401 Eye Street, NW Suite 800
Washington, DC 20005
[email protected]
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