The International Trade Commission proposed a series of new procedural rules, which were published in the Federal Register on September 24, 2015. The notice of proposed rulemaking can be found HERE. This blog post provides a summary of the more notable proposed changes to the procedural rules.

Severance of Investigations into Multiple Proceedings

Under its current practice, the Commission institutes a single investigation for each complaint received, irrespective of the number of patents, parties, products, or technologies involved. Under the proposed rules, the Commission could institute multiple proceedings “where necessary to limit the number of technologies and/or unrelated patents asserted in a single investigation” based from a single complaint.  The Administrative Law Judge (ALJ) would also have authority to sever cases. This severance by the ALJ would be based upon either a motion or the ALJ’s judgment that severance is necessary to allow efficient adjudication, and would be based on the same legal standard as severance by the Commission.

Formalization of Early Dispositive Issue Proceedings

The proposed rules would formalize the Commission’s “100-Day Pilot Program,” where in selected cases the ALJ is directed to hold an early evidentiary hearing on a potentially dispositive case issue. The proposed rules establish a procedure where—either due to a Commission order, an ALJ’s order, or a successful motion by a party—the ALJ holds a hearing and issues an initial determination on a potentially dispositive issue within 100 days.  The specified time frame for issuance of the initial determination could be extended for good cause shown. The ALJ would have authority to stay discovery during the pendency of the early dispositive issue proceeding. Under the proposed rules, if the Commission does not designate a potentially dispositive issue, any party to the investigation could move within 30 days of institution of the investigation for the ALJ to designate an early dispositive issue. The ALJ is also authorized to issue an order within 30 days of institution of the investigation to designate an early dispositive issue.

See our earlier blog post for our discussion on the Commission’s first investigation under its 100- Day Pilot Program.

Notice of Institution with Accused Products in “Plain Language”

When the Commission determines it will institute an investigation, the Commission publishes a Notice of Investigation in the Federal Register. This Notice defines the scope of the investigation. Under the current rules, there is no specific language the Commission must use to describe the products accused in the investigation, and the Notice will typically track the complainant’s categorization of the accused products. Under the proposed rules, the Commission would issue its Notice of Investigation with the scope of the investigation in plain language that makes explicit which accused products will be the subject of the investigation. In its notice of rulemaking, the Commission specifically asked for comments regarding this proposed rule, seeking comments addressing whether the proposed rule would be useful in clarifying the scope of the investigation.

Other Proposed Changes

  • The Commission would be permitted to serve documents electronically with consent of the parties. Currently, the Commission has no authority to serve documents electronically.
  • The proposed rules clarify that a motion for sanctions may be filed for abuse of discovery.
  • Consistent with Federal Rule of Civil Procedure 26, communications between a party’s counsel and any expert witness retained on behalf of that party would be privileged. The privileged communications would include any draft reports or disclosures that the expert prepares at counsel’s behest.
  • Expansion of the use of deposition testimony to include designating testimony in lieu of live testimony, even when the witness is available or is not a party. The designation of deposition testimony under these situations is not specifically allowed by the current rules.

Comments in response to the proposed rules are due on November 23, 2015.