Thursday, July 15, 2010

DNA in the CIT

Remember the scene in Jurassic Park in which the characters watch a cartoon Mr. DNA explain how the bad guys sequenced bits of dinosaur DNA taken from amber-preserved mosquitoes then strung the strands together to form the full genome of the various soon to be rampaging Triassic (not Jurassic) critters? If you do (or if you are familiar with the phrase "polymerase chain reaction"), you will understand what was at issue in Applied Biosystems v. United States.

If not, or if you just don't care, you will be happy to know that this is a straight-forward classification case. The issue was whether thermal cyclers used in gene sequencing should be classified as machinery, plant or laboratory equipment for the treatment of materials by a process involving a change in temperature. The alternative advanced by the plaintiff was classification as automated regulating or controlling instruments.

If Mr. DNA were explaining this, he would say, "What it comes down to is whether this machine is the toaster or the thermostat!"


The Court of International Trade concluded that the controller is conceptually distinct from the device it controls. In this case, the imported device changes the temperature of the DNA in solution. The regulator facilitates that. Since the product is not fully described as a controller but is fully described as lab equipment for treating materials by a change in temperature, the latter description wins and so does Customs and Border Protection.

I hope that someone reestablishes a secure perimeter around the Court of International Trade by getting power back to the electric fence. Otherwise, the Clerk of the Court might have to go T-Rex hunting in Foley Square. Personally, I would pay good money to see a pterosaur perched on the Woolworth Building.


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