On January 10, 2013, the Federal Circuit reaffirmed broad ITC jurisdiction for non-practicing patent enforcement entities by denying Nokia Corp.’s petition for rehearing of InterDigital Commc’ns, LLC v. Int’l Trade Comm’n (2010- 1093). In denying rehearing, the Federal Circuit also issued a new opinion to address more fully Nokia’s argument that InterDigital’s licensing activities were insufficient to satisfy Section 337’s domestic industry requirement. The court restated that non-practicing entities can satisfy the domestic industry requirement through substantial domestic investment in licensing activities, and that there is no need to prove that any licensed products are actually made in the United States.

The statutory foundation for the ITC’s domestic industry requirement is found in Section 337(a)(2), which requires “an industry in the United States, relating to the articles protected by the patent.” Section 337(a)(3) provides that “an industry in the United States shall be considered to exist if there is in the United States, with respect to the articles protected by the patent...