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Limited Exclusion Orders at the ITC

BY Maximilienne Bishop
September 02, 2013

The United States International Trade Commission (ITC) has the authority to stop unfair trade practices, including the importation of products found to infringe a valid U.S. patent. But does that authority automatically extend to downstream products incorporating a relatively insignificant infringing component ' such as an automobile that happens to include an infringing light-emitting diode? And is the ITC required to balance the parties' interests and consider factors such as the value of an infringing component compared to the overall value of the imported downstream product? This article examines a current split in authority answering those questions.

Background

For nearly 20 years, the ITC applied a nine-factor test to determine whether to exclude products that incorporate an infringing component after finding a violation of Section 337. See Certain Erasable Programmable Read-Only Memories, Inv. No. 337-TA-276, Pub. No. 2196, 1989 WL 1716252, *88 (U.S.I.T.C. May 1989) (EPROMs). These nine factors are referred to as EPROMs factors, from the investigation where they were first articulated. Over the last few years, administrative law judges (ALJs) have questioned whether the EPROMs factors remain viable in the wake of a decision by the Court of Appeals for the Federal Circuit concerning the scope of the ITC's authority to issue limited exclusion orders (LEOs) against non-respondents (non-parties) in ITC investigations. This has created a split at the ITC, with some of the ALJs concluding that the EPROMs factors are no longer relevant and others concluding they still apply.

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