Thirty nine (39) new Section 337 complaints have been filed at the International Trade Commission (“ITC”) in the first half of fiscal year (“FY”) 2018. The ITC is on pace to have one of the busiest years in its history and if the rate of filings increases slightly, the ITC may even exceed its FY 2016 record of 79 filings in a single year.

New ComplaintsCompleted InvestigationsActive Investigations200620072008200920102011201220132014201520162017Q2 201804080120160

Source: https://www.usitc.gov/intellectual_property/337_statistics_number_new_completed_and_active.htm

In addition to the number of filings, FY 2018 has seen a significant increase, on a pro-rated annual basis, of active investigations. This metric has been fairly consistent over the past several years but as of the first half of FY 2018, the ITC has ninety-five (95) active investigations. In addition to higher numbers of new complaints, one other factor contributing to the increase in the ITC docket may be the historically low number of both commissioners and administrative law judges. With recent arrivals of Commissioner Kearns (reported here) and ALJ Cheney (reported here), there may be a reduction of active cases in the near future.

The continued popularity of the ITC as a preferred forum is a reflection of the unique advantages of bringing a patent dispute to this forum, especially with regard to IPR proceedings and injunctive remedies.