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Nuts and Bolts of ITC Investigations
In recent years, the International Trade Commission ('ITC') has become an increasingly popular venue for parties seeking to enforce patent rights. There are several reasons for this trend. First, the ITC is a high-speed venue. The ITC's investigation of a patentee's allegations of infringement is typically completed within 12 to 15 months, far more quickly than cases in most U.S. district courts. Second, the ITC offers a powerful remedy: exclusion of infringing products from the United States. The U.S. Customs Service enforces the exclusion order. Of course, this remedy is available only when the infringing products are being imported. However, there are many industries in which most, if not all, manufacturing takes place overseas. As a result, resort to the ITC is often available even with respect to domestic competitors. Third, although the ITC does not award damages, the patentee has the option of seeking damages in a parallel case in federal district court. Thus, the patentee can obtain both damages and an exclusion order by pursuing relief before the ITC and a district court.
An ITC investigation of allegations of patent infringement is similar, in many ways, to a district court case. The ITC's determinations on patent infringement, like those of a district court, are controlled by Federal Circuit precedent and can be appealed to the Federal Circuit. In an ITC investigation, the usual defenses of non-infringement, invalidity, and unenforceability are available to the accused infringer. The ITC has rules allowing discovery that are similar to the discovery provisions of the Federal Rules of Civil Procedure. The ITC rules also provide for an evidentiary hearing before an Administrative Law Judge ('ALJ'), which is similar in many ways to a bench trial in federal district court.
However, there are a number of important practical differences between participating in an ITC investigation and litigating in federal district court. These include the requirement for the patentee to prove the existence of a domestic industry; the pleading requirements; the pace, extent and conduct of discovery; the likelihood of early settlement; the nature and extent of pre- and post-hearing briefing; and the participation of an attorney representing the public interest.
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