In the last edition of IP Insight we reported that the ITC had initiated a procedure to solicit comments from the public immediately upon receipt of a complaint on public interest issues that may pertain to the remedy requested in the Complaint. The ITC has now taken an additional step in soliciting information on potential public interest issues by proposing to amend its pleading rules to require the Complainant and Respondents to address these matters in the Complaint and Responses to the Complaint. The ITC advises that the intended effect of the proposed amendments is to aid the ITC in identifying investigations that require further development of public interest issues in the record, and to identify and develop information regarding the public interest at each stage of the investigation. In particular, the ITC advises that the proposed pleading requirement will aid the ITC in determining when to delegate part of the development of the record on the public interest to the administrative law judge.
The proposed rules would require a complaint to explain how the articles potentially subject to the orders are used in the United States; identify any public health, safety, or welfare concerns in the United States relating to the potential orders; indicate the extent to which like or directly competitive articles are produced in the United States or are otherwise available in the United States, with respect to the articles potentially subject to the orders; and indicate whether Complainant, Complainant’s licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to an exclusion order and a cease and desist order within a commercially reasonable time. The rules would likewise require the respondents to respond to the public interest issues raised by the complaint.
Comments from the public on the proposed rules are due on November 30, 2011. It is expected that the ITC will shortly thereafter issue the proposed rules as final rules, applicable in all cases filed after publication of the final rules.