The U.S. International Trade Commission (ITC) decides high profile intellectual property disputes involving complaints under Section 337 of the Tariff Act of 1930 based on the importation of allegedly infringing goods into the United States. An important platform for both domestic and foreign IP litigants, ITC investigations can quickly resolve cases and offer substantive resolution of both infringement and validity issues. While the ITC cannot award monetary damages, it can block infringing products from entering into the U.S. by issuing exclusion orders, or can preserve an importer’s continued access to United States consumers. Unlike federal district courts, the ITC can look across international borders to block products from coming into the U.S. based on unfair or infringing acts that take place globally.
Although ITC investigations often provide an alternative forum to litigate IP disputes, they also often can be used strategically to provide a parallel proceeding with different and advantageous procedures and remedies. In addition, ITC investigations are not limited to patent disputes, and also can be utilized for trademark, copyright, trade secret, and unfair competition investigations.
Some key advantages of using the ITC to resolve IP disputes are:
- ITC cases are generally decided in 12 to 18 months, while district court cases can take two to four years.
- The ITC has broad jurisdiction, nationwide subpoena power and in rem jurisdiction over goods imported into the United States.
- In many cases, the ITC is more likely than a district court to award injunctive relief against an accused infringer.
- The ITC rarely, if ever, stays an investigation in the event of a petition for IPR or other USPTO post grant proceeding.
- ITC investigations are decided by an experienced administrative law judge, as opposed to a jury.
- An ITC exclusion order is enforced by the U.S. Customs and Border Protection.
Although the ITC offers valuable tactical advantages over federal district court litigation, litigating in the ITC presents unique challenges. In ITC cases involving advanced technologies, the ability to analyze infringement issues and obtain discovery in a compressed period of time is critical. In addition, ITC cases are governed by an expedited time table and arcane rules of procedure. As a result, success before the ITC requires lawyers able to work efficiently and able to apply the ITC rules to their advantage, have the scientific or technical background necessary to thoroughly understand each case’s technical issues and leverage the assistance of specialized experts and client technical personnel, have a deep knowledge of the patent prosecution process, and understand the interplay between an ITC case and parallel proceedings in federal courts, the USPTO, or foreign tribunals.
Brooks Kushman IP litigators have the ITC and trial experience, technical and scientific training, and thorough knowledge of IP law and procedure to represent companies in all industries in ITC investigations. We have successfully represented both patent owners and alleged infringers in a broad range of industries and have a strong bench of attorneys that understand the intricacies complex technologies.
Brooks Kushman IP litigators have the ITC and trial experience, technical and scientific training, and thorough knowledge of IP law and procedure to represent companies in all industries in ITC investigations. We have successfully represented clients in a broad range of industries and have a strong bench of attorneys that understand the intricacies complex technologies.