Fuji's appeal was doomed by the CAFC begging off for lack of standing under Article III of the Constitution, the same issue as the recent MedImmune Supreme Court case, where the CAFC had similarly begged off, and the Supreme Court ruled, "no, you don't."

The Supreme Court has recognized that “private plaintiffs, unlike the Federal Government, may not sue to assess [civil] penalties for wholly past violations.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 188 (2000). However, “[t]o the extent that [civil penalties] encourage defendants to discontinue current violations and deter them from committing future ones, they afford redress to citizen plaintiffs who are injured or threatened with injury as a consequence of ongoing unlawful conduct.” Id. at 186. Thus, Fuji has no standing to challenge the Commission’s penalty determinations unless the civil penalties are “for violations that are ongoing at the time of the complaint and that could continue into the future if undeterred.” Id. at 188.

There was no threat of ongoing violations, because Jazz bit dust in 2003.

Benun wanted the civil penalties imposed by the ITC rescinded, arguing the ITC had no right. The CAFC said they did.

Benun is mistaken as to the scope of the Commission’s authority. The Commission plainly had authority to issue an order against Jazz when the Commission found it was infringing Fuji’s patents, and it could properly enjoin Jazz’s officers, employees, and agents from causing Jazz to engage in future violations. In Wilson v. United States, 221 U.S. 361 (1911), the Supreme Court explicitly noted:

A command to the corporation is in effect a command to those who are officially responsible for the conduct of its affairs. If they, apprised of the writ directed to the corporation, prevent compliance or fail to take appropriate action within their power for the performance of the corporate duty, they, no less than the corporation itself, are guilty of disobedience and may be punished for contempt.

The CAFC remanded only for the ITC to possibly lighten Benun's penalty, as the ITC may have counted some units that could have been imported as repaired, as opposed to the outlawed remakes.