The Hughes-Reyna Divide Continues: Dongkuk v. US
Patent – Patently-O 2025-04-22
Summary:
by Dennis Crouch
In a new decision released April 21, 2025, the Federal Circuit has given us another example of the jurisprudential divide between Judges Hughes and Reyna–something that I’ve followed across numerous opinions. Dongkuk v. US continues this pattern in a case involving antidumping duties on Korean wind towers.
Anti-Dumping Law: Under the Tariff Act of 1930 (19 U.S.C. § 1673 et seq.), the Commerce Department investigates whether foreign manufacturers are selling products in the U.S. at less than fair value (“dumping”). This process begins when a domestic industry files a petition simultaneously with both the Commerce Department and the U.S. International Trade Commission (19 U.S.C. § 1673a(b)). Commerce compares U.S. export prices with either home market prices (19 U.S.C. § 1677b(a)(1)(B)) or a “constructed value” when home market sales are inadequate or below cost (19 U.S.C. § 1677b(e)). The constructed value calculation includes the cost of materials and fabrication, selling expenses, profits, and packaging costs (19 U.S.C § 1677b(e)(1)-(3)). If Commerce determines dumping has occurred, it calculates a “dumping margin” and imposes corresponding antidumping duties (19 U.S.C. § 1673). Commerce’s final determinations are first appealed to the Court of International Trade (CIT) and then to the Federal Circuit, which has exclusive jurisdiction over appeals from the CIT pursuant to 28 U.S.C.