On June 24, 2013, the United States International Trade Commission (“ITC” or “Commission”) unveiled a new pilot program aimed at providing expedited Section 337 investigations without the burden and cost of a full-length investigation. In special cases identified by the Commission at institution of the investigation, the assigned Administrative Law Judge must issue an initial determination (“ID”) within 100 days of institution that can lead to early termination. The first investigation to be subject to such an expedited evidentiary hearing, Certain Products Having Laminated Packaging, Laminated Packaging, and Components Thereof, Inv. No. 337-TA-874, examined the economic prong of domestic industry. However, the ITC Notice indicates that additional “potentially dispositive issue[s],” such as importation and standing might be appropriate for an expedited evidentiary hearing.

BACKGROUND AND MOTIVATION -

The pilot program appears to signal the Commission’s desire to limit the ability of non-practicing entities (NPEs) to successfully use Section 337. The ITC Notice also coincides with the Obama administration’s announcement of regulatory and legislative efforts to curb allegedly abusive patent litigation brought by NPEs. Some aspects of Section 337 investigations, including the broad injunctive type relief afforded by ITC exclusion orders and the speed of ITC investigations, have apparently made the ITC attractive to NPEs.