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ITC Filings Surge in 2004
Attorneys have rushed to the border in 2004 to enforce patent rights. In the first 6 months of 2004, the International Trade Commission (“ITC” or “Commission”) has received more complaints to uphold patent rights than in any previous year except for 2001. It is anticipated that by the end of the year, the ITC will have experienced its most active year for patent litigation ever. Two key factors are helping to fuel an expansion of patent litigation at the ITC: the ability to pursue parallel actions before both the ITC and Federal District Court, and the fast track investigation of the ITC with final decisions typically issuing within 12 to 18 months. Moreover, the in rem nature of the remedies available at the ITC, particularly the general exclusion order, allows domestic patent holders to obtain substantial prospective relief without filing a series of actions against numerous foreign infringers. Consequently, as technology increasingly becomes a global enterprise, the pace of patent infringement complaints filed with the ITC will only continue to surge.
Section 337 of the Tariff Act of 1930 (19 U.S.C. '1337) gives the ITC authority to redress unfair trade practices caused by imports into the United States. The statute also requires proof of a “domestic industry” that either exists or is in the process of being established. One unfair trade practice the ITC can redress is importation of goods that infringe a valid U.S. patent. Owners of copyright and trademark rights can also seek relief before the ITC to prevent importation of infringing goods.
Filing a complaint that alleges an unfair trade practice under Section 337 causes the ITC to undertake an informal review to determine whether the complaint was properly filed (it is customary practice for complainants to confer with the Commission Investigative Attorney prior to filing to determine whether the complaint meets the Commission's rules). Assuming the complaint is sufficient, within 30 days the ITC is statutorily required to institute an “investigation.” The United States participates as a party in the investigation through the ITC's Office of Unfair Import Investigations (“OUII”), which represents the public interest. As investigations decided by the ITC are appealable to the Federal Circuit, the ITC follows Federal Circuit (or its predecessor court the C.C.P.A.) precedent. Due to the fact that the ITC's jurisdiction is limited to investigating issues of unfair importation, the ITC cannot investigate an issue of patent infringement unless the allegedly infringing goods are or were imported into the United States.
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