Posts Tagged: "ITC"

The International Trade Commission (ITC) is a popular venue for pursuing claims of patent infringement. Its fast procedural schedules and stringent remedies, including blocking infringing products at the United States border, make it attractive to patent holders. Attorneys who practice at the ITC often specialize in that forum. The primary objective of this article is to explore how the percentage of women ITC practitioners compares to that of men in 2022, as well as to examine the difference in experience levels with respect to women ITC practitioners and male ITC practitioners.

A recent policy change at the U.S. International Trade Commission (ITC) provides a lesson in how to properly draft a key requirement in a Section 337 complaint. The ITC is a popular forum for companies facing unfair competition from imported goods that infringe intellectual property rights. Companies alleging unfair competition can file a complaint asking the ITC to institute what is called a Section 337 investigation and issue exclusion orders barring entry into the United States of the offending goods. To prevail in a Section 337 investigation, the complainant must show, among other things, it has made investments in the US to exploit its intellectual property—the “domestic industry” requirement.

This year was a busy one for the International Trade Commission (ITC) compared to the last few years. As of December 15, 2022, there were 56 complaints filed, compared to 50 in all of 2021. The Commission also instituted more investigations in 2022 than 2021 and has a higher number of active cases compared to last year, according to Docket Navigator as of December 7, 2022. With in-person hearings resuming, it is an exciting time at the ITC. And with the evolving landscape of venue jurisprudence in the district courts, we expect the growth to continue into 2023. This article highlights a few new developments at the ITC over the past year, as well as several important decisions.

IPWatchdog held its Standards, Patents and Competition Masters ™ 2022 Program this week, November, 14-15, in Ashburn, Virginia, covering topics from how to define “fair reasonable and non-discriminatory” (FRAND) rates to litigating standard essential patents (SEPs) in South America and Europe. Almost all of the panels touched on how courts around the world are viewing the practices of implementers and patent holders in the SEP debate and how standoffs between implementers and patent owners in FRAND cases can be better resolved.

Roomba maker IRobot Corp. came closer to its goal of knocking down cheaper rival SharkNinja after winning a  decision in its patent-infringement case at the International Trade Commission (ITC/Commission), though it wasn’t a clear victory. ITC Judge MaryJoan McNamara said SharkNinja infringed two of four asserted iRobot patents, according to a notice posted last week on the agency’s electronic docket. The judge’s full findings won’t be public for a couple of weeks, to enable both sides to redact confidential business information.

On September 19, the U.S. Court of Appeals for the Sixth Circuit issued a decision in Mahindra & Mahindra Ltd. v. FCA US, LLC vacating the Eastern District of Michigan’s denial of permanent injunction against a redesigned version of an off-road vehicle manufactured by Mahindra. The Sixth Circuit, in an opinion authored by Senior Circuit Judge Helene E. White, found that the district court abused its discretion in failing to apply the “safe-distance rule” in determining whether to enjoin Mahindra, which had marketed an earlier version of the vehicle that was found to infringe trade dress protections on Jeep off-road vehicles.

Investigations brought under 19 U.S.C. § 1337, commonly known as “Section 337” cases, at the United States International Trade Commission (ITC) have become a go-to enforcement option for patent owners seeking fast, injunction-type relief against infringing imports. It is well known that the ITC issues powerful remedial orders, including (1) exclusion orders, which order United States Customs and Border Protection (Customs or CBP) to exclude infringing imports imported by Respondents or, in some cases, third parties, and (2) cease-and-desist orders, which order Respondents not to import or sell infringing, imported products in the United States. Because ITC remedial orders are broadly written to cover even unadjudicated products that infringe the subject patents, and because such orders are only prospective in nature, it is critical for ITC litigants and their attorneys to understand the available procedures to adjudicate redesigned products.

The U.S. Court of Appeals for the Federal Circuit today held in a precedential decision that Thales DIS AIS Deutschland GMBH cannot stop Philips from seeking an exclusion order at the International Trade Commission (ITC) to enjoin Thales from importing its products relating to wireless network technology into the United States.

On May 17, 2022, the Federal Trade Commission (FTC) submitted to Lisa Barton, Secretary of the International Trade Commission (ITC), a statement they believed was relevant to the public interest considerations before the Commission in a matter involving certain UMTS and LTE cellular communication modules (337-TA-1240). The ITC in many cases will invite statements on the Public Interest, and the FTC is often invited to make a submission. It should be noted, however,  “Public Interest” in the ITC is a matter of statute, and there are four public interest factors which are statutory. Any statement in the Public Interest must address one or more of those factors. Other matters not within the statute are not public interest factors.

On April 21, 2022, LG Electronics Inc. filed suit against Chinese television manufacturer, TCL, through several of its affiliates and related entities, in the Eastern District of Texas for patent infringement. See LG Electronics, Inc. v. TCL Electronics Holding Ltd. et al, Case: 2:22-cv-00122 (EDTX). The patents relate to display hardware, wireless transmission technology, and user interface controls. Several of TCL’s 4-Series, 5-Series, and 6-Series TVs are accused of infringement. The patents asserted by LG are U.S. Patent Nos. 7,982,803, 9,080,740, 9,788,346, 10,334,311 and 10,499,431. LG requests a jury trial, seeks a permanent injunction, and a finding that the infringement is willful (for enhancement purposes) and exceptional (for the awarding of attorneys’ fees).

The chaotic state of the world today makes it increasingly difficult for American companies to compete. Russian hostility has the democratic world on edge, U.S. inflation is at a 40-year high and hitting consumers hard, and China continues its aggressive push for economic and technological dominance.  To stay on top, the United States must out-innovate our competitors. America needs to lead the world in cutting-edge products and new technologies, and those are made possible by policies that support the innovation economy. The Ukraine crisis makes it clear that energy and cyber policy is crucial. Recently, the U.S. Trade Representative told Congress that supporting and protecting the full range of our innovators from China’s distortive practices is critical to our nation’s future.

On March 1, the U.S. Court of Appeals for the Federal Circuit (CAFC) affirmed the U.S. International Trade Commission (ITC)’s determination that the civil penalty imposed on DBN Holding, Inc. and BDN LLC did not require modification or rescission following the subsequent invalidation of the asserted claims. The ITC imposed this civil penalty against DBN for violating a consent order that prohibited unfair trade acts of infringement involving the now invalidated claims.

Over the past decade, the Patent Trial and Appeal Board (PTAB) has emerged as a critical and much-relied-upon tool for those facing patent infringement allegations. Some say that’s exactly what Congress intended with the America Invents Act—a defendant can file a validity challenge at the PTAB and get an expedited ruling on invalidity in a forum with specialized technical expertise and before judges with relevant technical backgrounds, at a lower cost than litigating validity issues in district court. And in fact, district courts will often stay infringement actions pending PTAB review of a patent at issue in a particular case.But the district courts and the PTAB are not the only fora in which patent issues are adjudicated. The United States International Trade Commission (ITC)—an independent, quasi-judicial federal agency based in Washington, DC—has become a forum of choice for patent owners seeking fast and effective relief for patent infringement.

This has been a year full of ups and downs, including at the International Trade Commisison (ITC). The ITC has stayed open for business, instituting a near-record number of investigations and holding hearings, albeit virtually. There have been a number of ITC decisions with interesting holdings, all of which have been covered well here and in other blogs. However, there have been a number of ITC-related happenings in 2021 which, though they received less coverage, may, like the proverbial butterfly, have important ramifications for years to come.

In 2001, six years before the iPhone appeared, a futurist named Ray Kurzweil wrote that humankind would cram 20,000 years of technological progress into the century that had just begun. There were skeptics, but today any of the world’s six billion smartphone subscribers can read his essay on their devices practically any time, any place they choose. As we move into an era of Artificial Intelligence (AI), quantum computing, and 5G telecommunications that supports Kurzweil’s vision, we must make sure that our laws and federal agencies match the pace of invention and protect innovators from trolls who would game the legal system and government functions for their ill-gained profit.