In light of Audio Processing Hardware, it is now clear that, with respect to appeals of ITC 100-day program determinations, Commission determinations against a complainant are immediately appealable, while determinations in favor of the complainant are not.

The U.S. International Trade Commission (the Commission or ITC), an independent quasi-judicial federal agency, is well-known for the speed with which it adjudicates patent infringement claims.1 On average, an evidentiary hearing is held within 8–10 months after the filing of a complaint. This compressed schedule, coupled with the broad discovery afforded in the ITC, often results in substantial legal expenses for the parties. In an attempt to conserve the resources of private parties and the Commission, the Commission implemented the 100-day pilot program, which, ironically, compresses the schedule even more with respect to one or more potentially case dispositive issues.

On June 24, 2013, the ITC issued a press release formally announcing the pilot program.2 Under the program, the Commission, at institution,3 can direct an administrative law judge (ALJ) presiding over a section 337 investigation to conduct expedited discovery and factfinding (including an early evidentiary hearing) on a potentially dispositive issue, such as the existence of a domestic industry,4 importation5 or standing. The ALJ is then required to issue an initial determination deciding the issue within 100 days of institution. Unless the Commission decides to review that determination within 30 days, it becomes the final determination of the Commission.6 Under certain circumstances, the Commission’s determination, as will be discussed below, may be appealable to the U.S. Court of Appeals for the Federal Circuit.

Recent Investigations

To date, three investigations have been subject to the pilot program. In the first investigation, Certain Products Having Laminated Packaging, Laminated Packaging, and Components Thereof ,7 the Commission ordered the ALJ to determine whether the complainant, Lamina Packaging Innovations LLC, satisfied the economic prong of the domestic industry requirement. In the second investigation, Certain Audio Processing Hardware and Software and Products Containing Same,8 the ALJ was ordered to determine whether the complainant, Andrea Electronics Corporation, had standing to assert the asserted patents. In the third investigation, Certain Portable Electronic Devices and Components Thereof,9 which is currently pending, the ALJ was ordered to determine whether the asserted claims of the patent-in-suit recite patentable subject matter under 35 U.S.C. § 101, a defense that has gained prominence in light of the Supreme Court’s decision in Alice Corp. v. CLS Bank International.10

In Laminated Packaging, the investigation was terminated based on a finding of no domestic industry; while in Audio Processing Hardware, it was allowed to proceed because the complainant, Andrea Electronics, represented by Pepper Hamilton, was found to have standing to bring its claim. The 100-day evidentiary hearing in Portable Electronic Devices occurred in early July, with an initial determination on the preliminary issue due on August 19, 2016.11

Appeals of 100-Day Determinations

Because the 100-day proceeding was introduced as a pilot program to test its efficacy, rather than through formal rule making, there were a number of unanswered procedural questions at the program’s inception. One such question related to the timing of a Federal Circuit appeal of a Commission determination issued in a 100-day proceeding. This question was answered in Audio Processing Hardware.12

In Audio Processing Hardware, Pepper Hamilton attorneys successfully argued that Andrea Electronics had standing to bring its complaint. The ALJ issued an initial determination to that effect and ordered the investigation to proceed.13 The respondents requested Commission review of the initial determination, which Andrea Electronics opposed. The Commission determined not to review that decision, making the ALJ’s initial determination the final determination of the Commission with respect to standing.14

Although the investigation was set to move forward, certain respondents,15 having lost on the standing issue at the ITC, filed a petition for review of the Commission’s determination with the Federal Circuit.16 Believing that the respondents’ appeal was premature, the Commission, as appellee,17 and Andrea Electronics, as an intervenor, jointly filed a motion to dismiss the respondents’ petition for review, arguing that the Federal Circuit lacked jurisdiction to hear the appeal.18

Under 28 U.S.C. § 1295(a)(6), the Federal Circuit has the authority to review “the final determinations of the United States International Trade Commission relating to unfair practices in import trade, made under section 337 of the Tariff Act of 1930 (19 U.S.C. 1337)” (emphasis added). Pepper, along with the ITC attorneys, argued that the Commission’s 100-day determination on standing was not a reviewable final determination under 28 U.S.C. § 1295(a)(6). Specifically, it was argued that the final determinations referenced in 28 U.S.C. § 1295(a)(6) are defined in 19 U.S.C. § 1337(c), which states in relevant part:

Any person adversely affected by a final determination of the Commission under subsection (d), (e), (f), or (g) of this section may appeal such determination, within 60 days after the determination becomes final, to the United States Court of Appeals for the Federal Circuit for review in accordance with chapter 7 of Title 5.19

Subsections (d), (e), (f) and (g) respectively provide for permanent exclusion orders, temporary relief orders, cease and desist orders and orders granting relief when a respondent defaults.20 Because the Commission’s determination that Andrea Electronics has standing was not an order issued under subsections (d) – (g), the ITC and Andrea Electronics argued that the Commission determination was not the type of “final determination” the Federal Circuit is allowed to review under 28 U.S.C. § 1295(a)(6).21 The Federal Circuit agreed.

In rendering its decision, the Federal Circuit found that the Commission had not made a final administrative decision on the merits but, instead, had only made a decision on the preliminary question of standing, which merely allowed the case to move forward.22 Accordingly, the court held that the Commission’s determination was not a final determination under subsections (d), (e), (f) or (g) and therefore was “not reviewable until the Commission render[ed] a final appealable decision.”23

Because Commission orders that have “the same operative effect, in terms of economic impact upon those terminated, as a final determination,” are reviewable, the court also analyzed whether the Commission’s standing decision was equivalent to a final determination.24 The Federal Circuit found that it was not. In rendering its decision, the court focused on the fact that the Commission’s determination did not terminate the investigation and that proceedings to determine whether Andrea Electronics was entitled to any relief were ongoing.25 As part of its analysis, the court commented that, if the Commission had found no standing (which would have terminated the investigation), then that determination would have been immediately appealable.


As the 100-day program will likely become a permanent fixture at the ITC, practitioners will be analyzing those investigations subject to a 100-day order to better understand the metes and bounds of the proceedings. For example, in light of Audio Processing Hardware, it is now clear that, with respect to appeals of ITC 100-day program determinations, Commission determinations against a complainant are immediately appealable, while determinations in favor of the complainant are not. Because so few cases have gone through the expedited proceeding, each investigation that is subject to it can significantly shape the law and forthcoming rules governing the 100-day program. As such, the pending 994 Investigation is one that will be closely watched by members of the ITC bar.