Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

The Intellectual Property StrategistKickerFeaturesTopicsLitigationRegulationSectionsNewsLJN Newsletters

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.

This premium content is locked for LJN Newsletters subscribers only

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473

Read These Next
The DOJ's Corporate Enforcement Policy: One Year Later Image

The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.

The DOJ's New Parameters for Evaluating Corporate Compliance Programs Image

The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.

Use of Deferred Prosecution Agreements In White Collar Investigations Image

This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.

Bankruptcy Sales: Finding a Diamond In the Rough Image

There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.

Compliance Officers: Recent Regulatory Guidance and Enforcement Actions and Mitigating the Risk of Personal Liability Image

This article explores legal developments over the past year that may impact compliance officer personal liability.