The U.S. International Trade Commission (“ITC” or “the Commission”) is an important venue for patentees. Cases are guaranteed a decision within sixteen months of the institution of the investigation and success provides injunctive relief without the need to satisfy the traditional equitable standard applicable in patent cases under EBay Inc. v. MercExchange, L.L.C. Moreover, the venue allows for multiple, unrelated defendants to be pursued in a single proceeding. For these reasons and others, the number of investigations in the ITC under Section 337 of the Tariff Act of 1930 (“Section 337”)2 has trended upward over most of the past ten years.

Section 337 proscribes a variety of acts associated with the importation of articles into the United States, including “[t]he importation into the United States, the sale for importation, or the sale within the United States after importation by the owner, importer, or consignee, of articles that (i) infringe a valid and enforceable United States patent…; or (ii) are made, produced, processed, or mined under, or by means of, a process covered by the claims of a valid and enforceable United States patent.” The statute authorizes the Commission to investigate alleged violations in a quasi-judicial proceeding, which is conducted by an administrative law judge (“ALJ”) on the record after notice and opportunity for a hearing. Most of the issues and procedures with which counsel are familiar in a typical patent case, such as claim construction, infringement, and invalidity play their accustomed role in a proceeding for patent infringement in the ITC.

Originally published in New Matter magazine, Volume 39, Number 3.