The U.S. International Trade Commission (USITC) has decided to review in part an Administrative Law Judge (ALJ)’s finding of violation of Section 337 based on patent infringement in Certain Semiconductor Devices, Semiconductor Device Packages, and Products Containing Same, Inv. No. 337-TA-1010 (Sept. 29, 2017).  While review of patent issues is not unusual, the Notice of Review contains two, relatively atypical pronouncements that are worthy of note.

First, the Notice denies respondents’ motion to modify the administrative protective order to allow “circumscribed usage of information in certain specified European patent proceedings.”  According to the Commission, “[t]o modify the APO in this manner would require the Commission to police the use of information outside the scope of Commission proceedings, which would be unduly burdensome for the Commission and unfair to other tribunals whose proceedings may be governed by different laws and rules.”  Although seemingly strict, the ruling emphasizes how the ITC zealously guards the sanctity of its protective orders.

Second, although the Notice identifies scores of submissions that the Commission has already received on the potential public interest ramifications of the ALJ’s decision, the Notice pinpoints some very specific areas on which the Commission would like further briefing.  These include: which of respondents’ 2800 accused products “most directly implicate the Commission’s public interest factors”; how those factors are “implicated on a patent-claim-by-patent-claim basis”; and whether public interest concerns can “be accommodated by the tailoring of any remedial orders” or “delaying the implementation” of such orders.  The Notice perhaps signals a novel, more granular approach to this increasingly important issue.