The ITC has adopted a new practice to solicit comments from the public on public interest issues raised by new Section 337 Complaints. The new procedure calls for the ITC Secretary to publish notice of receipt of a new Section 337 Complaint and to solicit comments from the public in that same notice. These notices are published in the Federal Register about a week after the ITC receives a Complaint.
Specifically, the ITC has requested that comments should address whether issuance of an exclusion order and/or a cease and desist order at the completion of an investigation of the allegations of the Complaint would negatively affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers. The Commission has expressed particular interest in comments that:
- 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 comments are required to be filed within five days after the ITC notice is published in the Federal Register, and are to be limited to five pages. The ITC rules provide that this type of written submission to the ITC can be treated as a confidential by the ITC in the event it contains confidential business information.
Ultimately, the ITC will use the information obtained in connection with the directive in the ITC’s statute to investigate public interest considerations and weigh whether those considerations counsel against issuance of a remedial order.