Evan Langdon is an Intellectual Property Partner at Nixon Peabody LLP, where he leads the firm’s International Trade Commission (ITC) Section 337 team. He focuses on Section 337 “Unfair Import” investigations before the ITC, intellectual property litigation in U.S. District Courts, and appeals before the Federal Circuit. Evan counsels clients on the nuances of navigating fast-paced Section 337 litigation involving patents, trademarks, and trade dress, and other unfair acts.
His practice is dedicated to representing U.S. and foreign companies on intellectual property matters before the ITC and U.S. District Courts. Leveraging his mechanical engineering background and past experience as a primary examiner at the United States Patent and Trademark Office, Evan litigates disputes across a wide variety of industries including LED lighting devices, mobile electronic devices and chipsets, data processing systems, semiconductors, lighting control devices, consumer electronics and accessories, shoes, household appliances, automotive, and various mechanical devices.
He has represented clients in more than thirty Section 337 investigations in all phases of litigation. He is adept at navigating the unique and complex procedural and technical issues of Section 337 investigations, and the rigorous economic analyses required for domestic industry and public interest. He also guides clients through post-investigation enforcement efforts.
At a time when most policymakers rightly argue that China and other countries need to do more to clamp down on intellectual property infringement, overturning the four-factor eBay test would impose new hurdles and increase the PAE problem that Congress and the Supreme Court have fought to address over that last two decades. The risk that an implementer engages in “efficient infringement” has made the ITC an increasingly attractive forum, for at least some patent owners and notably not PAEs. ITC exclusion orders and cease and desist orders are the last vestige of the exclusivity promised to the right patent owners at the time they are granted a patent. Compared to proposed sections of the STRONGER Patents Act, the ITC strikes a balance between offering at least some patent owners the ability to prevent infringers from engaging in the never-ending game of “efficient infringement” while frustrating PAEs attempts to abuse the exclusionary remedies offered. Congressional action should be reserved for a time when there is clear evidence that the eBay decision is harming U.S. businesses and those U.S. businesses are unable to obtain the relief they need at the ITC. At this time, there is no such evidence.
Prior to the Supreme Court’s decision in eBay v. MercExchange, 547 US 388 (2006), it was fairly routine for a victorious patent owner who prevailed on a finding of infringement in a federal district court litigation to assume that a permanent injunction would issue to prevent ongoing infringement. Despite the STRONGER Patents Act seeking to overturn eBay, Congress at large has no desire to disturb this Supreme Court decision and any bill that contains a provision overruling eBay cannot be enacted. In light of eBay, the U.S. International Trade Commission (ITC), which has always played a large role in patent litigation and enforcement strategies because of its statutory authority to issue exclusion orders and cease and desist orders, emerged as an important forum for patent owners.