ITC Section 337

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July Shows Dramatic Increase in ITC Complaints

After a steady, but typical number of Section 337 complaints filed in the first half of 2020, the U.S. International Trade Commission (ITC) saw a dramatic increase in July. Twelve new complaints were filed, representing the second largest number of complaints ever filed in one month. Despite issues surrounding the COVID-19 crisis and uncertain economic … Continue Reading

CAFC Affirms Decision to not Rescind ITC General Exclusion Order Based on New Invalidity Arguments

In Mayborn Group, Ltd. v. ITC, 19-2077 (July 16, 2020), the Court of Appeals for the Federal Circuit (CAFC) affirmed an U.S. International Trade Commission (ITC) decision denying a petition for rescission of a General Exclusion Order (GEO) based on new invalidity arguments presented by a party not involved in the underlying investigation. This decision … Continue Reading

ITC selects WebEx Meeting for Hearings Involving Confidential Business Information

On July 20, 2020, the U.S. International Trade Commission (ITC) announced that it has chosen WebEx Meeting as its secure FedRAMP-certified video teleconferencing solution for Section 337 hearings and conferences involving Confidential Business Information (CBI). The Administrative Law Judge (ALJ) presiding over each investigation has responsibility for determining appropriate hearing procedures using WebEx Meeting, and … Continue Reading

The ITC Expands its Approach to Issuing Cease and Desist Orders

The U.S. International Trade Commission (“ITC”) is an important venue for Intellectual Property owners seeking to enforce their rights against imported infringing products under 19 U.S.C. § 1337 (“Section 337”). IP owners often focus on obtaining Limited Exclusion Orders (or in certain circumstances, General Exclusion Orders) from the ITC. IP owners should not, however, overlook … Continue Reading

COVID-19’s Impact on Section 337 Investigations at the U.S. International Trade Commission (Update)

Like many other Federal Agencies and U.S. District Courts, the U.S. International Trade Commission (“ITC”) has been open for business during the COVID-19 crisis, but on a limited basis. On June 22, 2020, the ITC announced plans for re-opening on a broader basis. As the District of Columbia and the surrounding areas begin a phased … Continue Reading

COVID-19’s Impact on Section 337 Investigations at the U.S. International Trade Commission (Part II)

Like many other Federal Agencies and U.S. District Courts, the U.S. International Trade Commission (“ITC”) is open for business during the COVID-19 crisis, but on a limited basis. Modifications to the ITC’s business began on March 17, 2020, and the ITC’s COVID-19 Action Plan will remain in place through at least July 10, 2020. Part … Continue Reading

COVID-19’s Impact on Section 337 Investigations at the U.S. International Trade Commission (Part I)

Like many other Federal Agencies and U.S. District Courts, the U.S. International Trade Commission (“ITC”) is open for business during the COVID-19 crisis, but on a limited basis. Modifications to the ITC’s business began on March 17, 2020. On May 14, 2020, the ITC’s COVID-19 Action Plan was extended through July 10, 2020. Although limited … Continue Reading

Beyond IP Rights: Pursuing Antitrust Claims Under Section 337 of the Tariff Act

Although investigations under Section 337 of the Tariff Act of 1930 have focused on intellectual property rights involving patents, unregistered trademarks or trade secret claims, the language of Section 337 is much broader. The provision applies to any “unfair methods of competition and unfair acts in the importation of articles.” That language is similar to … Continue Reading

Foreign-based Companies Can Meet the Section 337 Domestic Industry Requirement

The United States International Trade Commission (ITC) can provide a powerful alternative forum for enforcement of Intellectual Property Rights, including U.S. patents.[1] But there are limitations on the actions that can be brought at the ITC. For example, to bring an action for patent infringement at the ITC, a patent owner must demonstrate, inter alia, … Continue Reading

ITC Temporarily Rescinds Remedial Orders Based On District Court Invalidity Judgment

In yet another twist in the saga of Certain Beverage Brewing Capsules, Components Thereof, and Products Containing Same, Inv. No. 337-TA-929, the U.S. International Trade Commission (ITC) has issued an order temporarily rescinding the extant remedial orders in that investigation pending appeal of a district court judgment finding the claims of the patent-in-suit invalid.  The … Continue Reading

ITC Doubles Down On Its Interpretation Of Section 337’s Domestic Industry Requirement

Just one month after the U.S. International Trade Commission (ITC) issued an important decision in Certain Solid State Storage Drives, Stacked Electronics Components, and Products Containing Same, Inv. No. 337-TA-1097 holding that labor, capital, and employment investments in non-manufacturing activities, such as engineering and research and development, can satisfy Section 337’s domestic industry requirement (see … Continue Reading

ALJ Cheney Grants Motion To Terminate Based On Arbitration Agreement

Just a few days after denying a motion to terminate in Certain Color Intraoral Scanners and Related Hardware and Software, Inv. No. 337-TA-1091, Order No. 23 (May 18, 2018) that was based on a forum selection clause in a prior agreement between private parties (see our prior post), Administrative Law Judge Cheney granted a motion to … Continue Reading

USITC Issues Important Opinion Concerning Section 337’s Domestic Industry Requirement

The U.S. International Trade Commission issued an important opinion on Friday concerning Section 337’s “domestic industry” requirement, holding that investments in non-manufacturing activities, such as engineering and research and development, can be used to satisfy the required “significant investment in U.S. plant and equipment” or “significant employment of U.S. labor or capital.” The Commission’s opinion … Continue Reading

A Forum Selection Clause Provides No Basis For Terminating A Section 337 Investigation

Does a forum selection clause in a pre-existing agreement between opposing parties in a Section 337 investigation provide grounds for terminating the investigation?  A recent decision of Administrative Law Judge Cheney in Certain Color Intraoral Scanners and Related Hardware and Software, Inv. No. 337-TA-1091, Order No. 23 (May 18, 2018) concludes that the answer is … Continue Reading

USITC Finalizes Amendments To Procedural Rules Governing Section 337 Investigations

The U.S. International Trade Commission (ITC) has published in the Federal Register final revisions to its rules of practice and procedure governing Section 337 investigations, the investigations that the ITC conducts under 19 U.S.C. § 1337 based on private party complaints against imported articles that allegedly violate U.S. intellectual property rights.  This completes a process … Continue Reading

USITC Declines To Designate An Antitrust-Based Section 337 Investigation For Early Disposition

Under a pilot program initiated in 2013, the U.S. International Trade Commission (ITC) may designate an investigation for early disposition if it believes that there is a potentially case-dispositive issue warranting the program’s speedy (100-day) treatment.  Since the program’s inception, the ITC has employed it sparingly, with only a handful of investigations garnering entry into … Continue Reading

USITC Institutes Antitrust-Based Section 337 Investigation

Just days after affirming an administrative law judge’s decision to dismiss price fixing claims brought under Section 337 against numerous foreign steel companies for failing to plead “antitrust injury” (see our prior post), the U.S. International Trade Commission (ITC) has issued a notice announcing institution of another investigation involving antitrust claims (Certain Programmable Logic Controllers … Continue Reading

U.S. International Trade Commission Affirms ALJ’s Dismissal Of Antitrust-Based Claims In Carbon And Alloy Steel Products

Section 337 of the U.S. trade laws provides the U.S. International Trade Commission with the authority to prevent “unfair practices in import trade.”  While the statute is best known for its provisions that allow the ITC to exclude imported goods that infringe U.S. intellectual property rights, the statute also provides more generally for the ITC’s … Continue Reading

Another Domestic Industry Lesson For Section 337 Litigants

The requirement of establishing a “domestic industry” in articles protected by a patent is a unique and important aspect of Section 337 litigation.  Without it, the statute’s exclusionary remedies against imports that infringe a patent cannot be invoked.  The statute enumerates the types of activities that can satisfy the “economic prong” of the domestic industry … Continue Reading

USITC Rings In The New Year By Designating An Investigation For Early Disposition

Under a pilot program initiated in 2013, the U.S. International Trade Commission (ITC) may designate an investigation for early disposition if it believes that there is a potentially case-dispositive issue warranting the program’s speedy (100-day) treatment.  Since the program’s inception, the ITC has employed it sparingly, with only a handful of investigations garnering entry into … Continue Reading

USITC Denies Early Disposition Pilot Program Status In Three More Section 337 Investigations

The U.S. International Trade Commission (ITC) has denied respondents’ requests for entry into the ITC’s pilot program for early case disposition in a trio of recent orders: in Certain Insulated Beverage Containers, Components, Labels, and Packaging Materials Thereof, Inv. No. 337-TA-1084 (Nov. 17, 2017); and in the companion cases of Certain Color Intraoral Scanners and Related Hardware … Continue Reading

USITC Denies Request For Entry Into Early Disposition Pilot Program

Under a pilot program initiated in 2013, the U.S. International Trade Commission (ITC) may designate an investigation for early disposition if the ITC believes that there is a potentially case-dispositive issue warranting the program’s speedy (100-day) treatment.  Since the program’s inception, however, the ITC has designated only a handful of cases for early disposition.  Although … Continue Reading

USITC Maintains General Exclusion Order Against Foam Footwear Despite PTO’s Finding of Unpatentability On Reexamination

For the second time in the past few months, the U.S. International Trade Commission (ITC) has decided to maintain an exclusion order despite final unpatentability findings by the U.S. Patent and Trademark Office (PTO). The investigation is Certain Foam Footwear, Inv. No. 337-TA-567, which resulted in a general exclusion order in July 2011 based on … Continue Reading

USITC Refuses to Rescind $650K Civil Penalty Despite Party and Staff Consent

The U.S. International Trade Commission (USITC) has determined to maintain the $650,000.00 penalty it imposed for violation of a consent order entered in a Section 337 investigation, notwithstanding that the parties and the Office of Unfair Import Investigations (OUII) supported rescinding the penalty.… Continue Reading
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