Matt Rizzolo, Ropes & Gray IP litigation partner, examines the various operations of the U.S. International Trade Commission (USITC) in an increasingly global world.
I'm Matt Rizzolo, an IP litigator based in Ropes & Gray's Washington, D.C. office. In this video, I'll be discussing the U.S. International Trade Commission.
The ITC is an independent, quasi-judicial federal agency responsible for enforcing Section 337 of the Tariff Act, which is a trade statute designed to protect U.S. industries from injuries caused by unfair acts connected to the importation of goods into this country. While the large majority of these so-called "Section 337 investigations" have focused on allegations of patent or trademark infringement, the ITC can also address other types of unfair acts, such as trade secret misappropriation.
ITC's main advantages to complainants
The ITC's main advantages to a complainant are the speed of the investigations and the potent remedies it issues. Section 337 proceedings are extremely fast, often taking less than 18 months from filing to final decision, and they rarely suffer from delays that can affect a federal district court action. The default remedy, which is an exclusion order that bars affected products from entry into the United States, can be a source of powerful leverage in business disputes.
Triggering a potential investigation
A complainant triggers a potential investigation by filing a complaint with the ITC. At a high level, the complainant must allege three things:
- an "unfair act" committed by the proposed respondent, such as patent infringement;
- an importation of a product that is the subject of the unfair act; and
- a "domestic industry" – or a sufficiently large presence in the United States that the unfair acts may be harming.
Instituting an investigation
Once the Commission institutes the investigation, it assigns the case to an administrative law judge, and then it's off to the races. The investigation proceeds in a manner similar to a district court litigation with a bench trial, but much more quickly than in district court – you can expect trial in nine-ten months. The ALJ will issue his or her "Initial Determination," and the parties can ask the full Commission to review. If on review the Commission determines that a violation of the statute has occurred, it will issue an exclusion order authorizing U.S. Customs to seize the violating products at the border. The ITC applies its own unique set of rules and procedures, not the Federal Rules of Evidence or the Federal Rules of Procedure. And often there may be a third party litigating in the case alongside the complaint and respondent – this is an attorney from the ITC's "Office of Unfair Import Investigations," whose function is to represent the "public interest" and provide its own view of the case. These nuances and others mean that any company litigating at the ITC should retain experienced ITC counsel.
Patent litigation forum
Those who are familiar with the ITC probably know it as a patent litigation forum – historically, over 90% of Section 337 investigations have involved patent infringement issues. And that's for good reason – unlike in the district court, where injunctions issue only after a weighing of equitable considerations, the ITC's exclusionary remedies are virtually mandatory. And because the ITC has a statutory mandate to complete its investigations "at the earliest practicable time," the ALJs do not stay Section 337 proceedings pending parallel patent validity challenges brought in the Patent Trial and Appeal Board. It's no wonder that the number of ITC complaints have nearly doubled between 2006 and 2018.
Trade secret misappropriation
But there's more to the ITC than patents – Section 337 broadly prohibits harmful "unfair methods of competition and unfair acts in the importation of articles into the U.S." This gives the ITC authority to hear a wide variety of claims – antitrust, breach of contract, even commercial bribery. One area of particular import in today's economy is trade secret misappropriation – the ITC has the authority to block products that embody or were made using a misappropriated trade secret, even if that misappropriation occurred completely abroad. So for companies worried about having to litigate on a foreign entity's home turf, the ITC may provide a more favorable option.
In an increasingly global world, the ITC is only going to become more important – and not just for patent cases. I would expect the number of complaints to keep rising, and the variety of claims to increase in diversity.
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