The International Trade Commission (ITC) is a critical forum for those seeking to protect their intellectual property rights, particularly patent claims, against unfair imports. As overseas manufacturing has increased and injunctive relief from the federal courts has become more difficult to obtain as a result of the Supreme Court’s eBay decision, ITC exclusion orders to ban infringing imports have become a more attractive option for some plaintiffs who can show the existence of a domestic industry for the products at issue. Similarly, the federal courts’ willingness, unlike the ITC, to stay and defer to pending inter partes review proceedings before the USPTO Patent and Trial and Appeal Board has made the accelerated decision-making of the ITC a more attractive alternative to slower district court proceedings. Finally, the America Invents Act’s joinder rules are not an issue in Section 337 investigations, as the target of the investigation is the article being imported, with the manufacturer, distributors, downstream users, and/or importers being named, essentially, to defend against exclusion of the imported article. While the ITC has adopted a number of common procedures, ALJs have individual rules of practice, some of which can differ significantly.
In conjunction with the Sedona Conference’s Working Group 10 (WG10), Finnegan attorney Christine Lehman coauthored Commentary on Patent Litigation Best Practices: International Trade Commission Section 337 Investigations Chapter, which outlines principles and best practices specific to International Trade Commission Section 337 Investigations to parallel the extensive set of commentary chapters that WG10 has published for patent litigation in the federal courts.