Most project the Trump administration as less inclined toward continued patent reform, more pro-patent, and certainly more trade protectionist, than other recent administrations. How might these tendencies impact the ITC in its handling of Section 337 cases? Although administration changes typically do not have a large impact on Section 337 practice, we have identified five areas where there may be an impact:
Presidential Review. ITC Section 337 violation determinations resulting in orders that exclude imports do not become final until they are reviewed by the President. Historically, Presidents have only disapproved six such determinations. Thus, the odds of Presidential disapproval were already low, but, in view of his protectionist tendencies, President Trump seems even less likely to disapprove an ITC Section 337 violation determination.
ITC Commissioners. The ITC has six commissioners (no more than three per political party), who are nominated by the President and confirmed by the Senate. They serve nine-year terms. The current lineup includes one vacancy, and three more terms expiring through 2020. If Trump nominees for commissioner positions are more pro-patent, this will affect the lens through which they review initial determinations from ITC administrative law judges.
Federal Circuit Judges. ITC determinations are appealed to the Court of Appeals for the Federal Circuit. Federal Circuit judges are appointed by the President and confirmed by the Senate. Again, if Trump nominees for the Federal Circuit tend to be more pro-patent, this will affect the lens through which they review appeals from ITC determinations. Furthermore, the ITC looks to Federal Circuit precedent for guidance on patent law issues. The addition of pro-patent leaning Federal Circuit judges also will indirectly affect the ITC to the extent such judges influence Federal Circuit patent law precedent.
Chevron Deference. Now that Trump’s Supreme Court nominee Neil Gorsuch has been confirmed, he may impact the ITC and other federal agencies by his opposition to “Chevron deference,” the doctrine that requires judges to defer to an administrative agency’s interpretation of the ambiguous terms of a statute that the agency administers. Gorsuch, while serving on the 10th Circuit, indicated his potential adversity to Chevron deference in Gutierrez-Brizuela v. Lynch. Congressional Republicans have Chevron deference in their crosshairs as well, introducing legislation in 2016 that would overturn Chevron deference. If Chevron deference is eliminated, the Federal Circuit, when confronting appellate issues arising from ITC determinations, will give no deference to the ITC’s interpretation of Section 337.
Patent Litigation Venue Reform. The TC Heartland v. Kraft Foods Group Brands case before the Supreme Court may result in a change to venue standards for district court patent litigation. To the extent the Trump administration supports, and Congress acts on, further venue reform by way of legislation that would put greater limits on district court forum shopping in patent cases, this may cause an uptick in complaints filed at the ITC. Plaintiff patentholders who can meet the ITC’s domestic industry threshold may perceive an advantage to litigating at the ITC (due to its speed and other factors) versus litigating in a defendant’s home forum (which may otherwise be their only district court option if venue reform comes to pass).