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Trending Topics in
ITC Litigation
Presented by: Sheila Swaroop &
Jonathan Bachand
May 1, 2024
The content of this presentation is for educational purposes
only and does not necessarily reflect the opinions of
Knobbe Martens or its clients.
Trending Topics
2
Recent Trends in
Section 337 Litigation
Legislative Reform
First Use of the ITC’s
“Interim ID” Program
Domestic Industry
Update
Public Interest Update
Use of the ITC for
Claims Other Than
Patent Infringement
ITC Overview
• Administrative agency in Washington D.C.
• Six Commissioners – currently four
• Administrative Law Judges – currently six
• Office of Unfair Import Investigations
• Responsible for administration of U.S. trade laws, including Section 337
• Section 337 provides mechanism to prevent the unlawful importation
into the United States of articles
• Available remedies:
• Exclusion order to prevent the importation of articles into the
United States
• Cease-and-desist order directed to U.S. companies to prevent
sales of articles that have already entered
3
Recent Trends in Section 337 Litigation
4
FY2023 and FY
2024 filings
Most common
technology areas are
computer and
telecommunications
products and
consumer electronics
Declining rates
of settlement
Average length of
investigations
ranges from 17-19
months over the
past five years
Section 337 Statistics | United States
International Trade Commission
(usitc.gov)
Recent Efforts at
Legislative Reform
• Advancing America’s Interest Act
• Key provisions proposed
• Changes proof requirements for domestic
industry when relying on licensing
activities
• Requires affirmative determination that
exclusion is in the public interest
• Requires ITC to identify any dispositive
issues for 100-day determination
5
Use of the
Interim ID
Program
6
• Allows litigants to ask for early resolution
on a potentially case-dispositive or case-
limiting issue
• Domestic industry
• Standing
• Infringement and invalidity (including 101)
• Pilot program requests are not frequently
made or granted
IID “pilot program” started May
2021
• In re Certain Replacement Automotive
Lamps 1 & II, 337-TA-1291, 1292
First Use
Domestic Industry Update
• Analysis of “aggregated” domestic expenditures in 337-TA-1292 and 337-TA-1291
• Patentees each asserted 20 design patents directly to lamps for automobiles
• Patentees attempted to aggregate investments for different domestic products
that practiced different patents, instead of doing this analysis on a patent-by-
patent basis
• Commission found that this approach failed to establish economic prong of
domestic industry
7
Public Interest Update
• Philip Morris v. ITC, 63 F.4th 1328 (Fed. Cir. 2023)
• Discusses the scope of the Commission’s obligations to consult with federal
agencies when issuing exclusion orders
• Commission publishes Federal Register notices, accepts submissions from
agencies, and considers evidence presented by the litigants
8
Non-Patent
Claims Raised in
Section 337
Investigations
9
trademark
infringement
trade secret
misappropriation
trade dress
infringement
copyright
infringement
unfair
competition
false advertising
antitrust price fixing
tortious
interference
DMCA
© 2020 Knobbe Martens
Sheila Swaroop
Sheila.Swaroop@knobbe.com
Jonathan Bachand
Jonathan.Bachand@knobbe.com

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Trending Topics in ITC Litigation with Knobbe Martens

  • 1. Trending Topics in ITC Litigation Presented by: Sheila Swaroop & Jonathan Bachand May 1, 2024 The content of this presentation is for educational purposes only and does not necessarily reflect the opinions of Knobbe Martens or its clients.
  • 2. Trending Topics 2 Recent Trends in Section 337 Litigation Legislative Reform First Use of the ITC’s “Interim ID” Program Domestic Industry Update Public Interest Update Use of the ITC for Claims Other Than Patent Infringement
  • 3. ITC Overview • Administrative agency in Washington D.C. • Six Commissioners – currently four • Administrative Law Judges – currently six • Office of Unfair Import Investigations • Responsible for administration of U.S. trade laws, including Section 337 • Section 337 provides mechanism to prevent the unlawful importation into the United States of articles • Available remedies: • Exclusion order to prevent the importation of articles into the United States • Cease-and-desist order directed to U.S. companies to prevent sales of articles that have already entered 3
  • 4. Recent Trends in Section 337 Litigation 4 FY2023 and FY 2024 filings Most common technology areas are computer and telecommunications products and consumer electronics Declining rates of settlement Average length of investigations ranges from 17-19 months over the past five years Section 337 Statistics | United States International Trade Commission (usitc.gov)
  • 5. Recent Efforts at Legislative Reform • Advancing America’s Interest Act • Key provisions proposed • Changes proof requirements for domestic industry when relying on licensing activities • Requires affirmative determination that exclusion is in the public interest • Requires ITC to identify any dispositive issues for 100-day determination 5
  • 6. Use of the Interim ID Program 6 • Allows litigants to ask for early resolution on a potentially case-dispositive or case- limiting issue • Domestic industry • Standing • Infringement and invalidity (including 101) • Pilot program requests are not frequently made or granted IID “pilot program” started May 2021 • In re Certain Replacement Automotive Lamps 1 & II, 337-TA-1291, 1292 First Use
  • 7. Domestic Industry Update • Analysis of “aggregated” domestic expenditures in 337-TA-1292 and 337-TA-1291 • Patentees each asserted 20 design patents directly to lamps for automobiles • Patentees attempted to aggregate investments for different domestic products that practiced different patents, instead of doing this analysis on a patent-by- patent basis • Commission found that this approach failed to establish economic prong of domestic industry 7
  • 8. Public Interest Update • Philip Morris v. ITC, 63 F.4th 1328 (Fed. Cir. 2023) • Discusses the scope of the Commission’s obligations to consult with federal agencies when issuing exclusion orders • Commission publishes Federal Register notices, accepts submissions from agencies, and considers evidence presented by the litigants 8
  • 9. Non-Patent Claims Raised in Section 337 Investigations 9 trademark infringement trade secret misappropriation trade dress infringement copyright infringement unfair competition false advertising antitrust price fixing tortious interference DMCA
  • 10. © 2020 Knobbe Martens Sheila Swaroop Sheila.Swaroop@knobbe.com Jonathan Bachand Jonathan.Bachand@knobbe.com