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The ITC Is Dead, Long Live the ITC

By Elizabeth A. Niemeyer and C. Brandon Rash
June 02, 2014

The U.S. International Trade Commission (ITC) administers U.S. trade laws, including Section 337 investigations concerning allegations of unfair competition based on alleged infringement of intellectual property rights. In the last decade, the ITC has been an increasingly popular forum for litigating IP rights, largely because it offers a quick and forceful remedy in the form of an exclusion order, which can exclude infringing products from the U.S. market. In recent months, several important decisions have caused some to question the continuing vitality of the ITC as forum. A review of complaints filed since 2011, however, reveal that patentees had already begun modifying their allegations, greatly minimizing the actual impact of these recent decisions.

This article examines three recent ITC-related decisions. First, in Suprema, Inc. v. International Trade Commission, No. 2012-1170 (Fed. Cir. Dec. 13, 2013), the Federal Circuit held that '337 measures infringement at the time of importation, which precludes a finding of a violation based on allegations of induced infringement of a method claim. Next, in Computers and Computer Peripheral Devices, Investigation No. 337-TA-841 (Jan. 9, 2014), the ITC held that a complainant alleging the existence of a domestic industry based on licensing must show the existence of articles covered by the patents-at-issue. Lastly, in Certain Electronic Devices, Investigation No. 337-TA-794, the United States Trade Representative (USTR) vetoed an ITC exclusion order based on a finding that Apple had violated '337 by infringing FRAND-encumbered, standards-essential patents.

Each of these decisions has important legal consequences that patent owners should consider before filing a complaint at the ITC. A review of the 143 patent infringement complaints filed in the last three years (2011-2013), however, shows that the practical impact of these decisions may be significantly less than reported.

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