What's changed in 10 years?
What has changed for intellectual property and technology in 10 years? Nothing, and everything.
Since we started this publication ten years ago, in one sense, nothing has changed. Intellectual property and technology are still rapidly growing and still are at the heart of what every company needs to protect.
In another sense, though, everything has changed. IPT rights are even more relevant today. We now live in an ever-changing digital world characterized by new technologies and explosive growth.
For the past ten years, we have covered technology's cutting edge issues, including the America Invents Act, GDPR, Alice, the IoT, gene patenting, EDTX, biosimilars, GTLDs, TC Heartland, the PTAB, disparagement, franchisor joint employer issues, cloud computing, circuit splits and more. We have seen old laws stretch to cover new technology, and new laws enacted to encompass such technology. As our centerfold story notes, consumer data privacy rights are taking center stage globally.
In the coming decade, we will continue helping our clients across all sectors face challenging issues every day: from e-commerce, AI and web scraping to blockchain, augmented reality and technology convergence. Our preeminent IPT practice will continue serving our clients in geographies around the globe, providing a discerning path across this ever-changing legal landscape.
A quick look at the last 10 years
Intellectual Property and Technology News
The US International Trade Commission conducts investigations under 19 U.S.C. §1337 (Section 337 investigations) directed to any unfair act in the importation of articles into the US. Almost all of these are intellectual property cases, greater than 90 percent of which include an assertion of patent infringement. The number of such investigations instituted per fiscal year has increased significantly over the past 10 years, from 37 (2009) to about 70-80 (2016-18) annually. The increase has been especially significant in the biopharma/medical device sector, where the number of investigations has grown from 2 (2010) to about 15 per year.
In addition to the Commission's lack of venue and personal jurisdiction requirements, unique in rem jurisdiction, and the speed of its proceedings, several developments during the past 10 years have contributed to the increase in Section 337 investigations, among them:
- The Supreme Court's decision in TC Heartland, which restricted venue requirements for patent cases, leading to a decrease in district court filings and an increase in ITC filings
- The Commission's policy of not staying Section 337 investigations pending parallel PTAB proceedings, further enabling it to provide decisions faster than district courts
- The extraterritorial reach of Commission investigations has permitted adjudication of claims that originate in foreign jurisdictions. See, eg, Sino Legend Chem. Co. v. ITC (Rubber Resins & Processes for Mfg. Same, Inv. No. 337-TA-849 (trade secret misappropriation in China) and
- The Federal Circuit's en banc decision in Suprema v. ITC that the Commission has jurisdiction to block imported products that induce or contribute to infringement in the US
One exception to the growth in Section 337 investigations has been with respect to Category 2 Non-Practicing Entities (NPEs), which purchase patents for the purpose of exploitation. Recent Commission decisions have tightened the domestic industry standards to require something the Category 2 NPEs do not have: a product that practices the asserted patents and a significant investment in a domestic industry tied to such product. This has decreased the number of Category 2 NPE cases from a high of 9 (2011) to 0 (2018).
The past 10 years have also seen significant changes to the Commission's rules of practice, all of which have improved the speed and efficiency of its decision making, including:
- In 2010, the Commission began delegating authority to Administrative Law Judges (ALJs) to take evidence and hear arguments on the statutory public interest factors, which has occurred in approximately 100 investigations to date
- In 2013, the Commission introduced a Pilot Program for the 100-Day Initial Determination (ID) Procedure, resulting in early determinations in investigations for lack of domestic industry, standing and importation as well as patent invalidity under 35 U.S.C. §101
- In 2013, the Commission set limitations on the number of depositions and interrogatories, and restrictions on electronic discovery and
- In 2017, the Commission formally adopted the 100-Day ID Procedure and provided that the Commission may sever a complaint into multiple investigations for efficient adjudication
Among notable examples of recent decisions consistent with some of these changes are Non-Volatile Memory Devices, Inv. No. 337-TA-1046 (holding a domestic industry article does not have to be sold); Motorized Vehicles, Inv. No. 337-TA-1132 (expanding scope of 100-Day ID procedure to determine whether the complainant is contractually barred from enforcing its IP rights against respondents); and Mobile Electronic Devices, Inv. No. 337-TA-1065 (for the first time, an ALJ recommended against granting an exclusion order where a patent was held valid and infringed on public interest grounds that exclusion would jeopardize the 5G technology industry relative to China and would harm national security; this recommendation is under review by the Commission).