What is ITC Litigation and Why Should I Care?

You just received a subpoena or, even worse, a complaint alleging you infringe a patent. But, instead of directing you to a federal courthouse, the caption reads: United States International Trade Commission — or more colloquially the "ITC" or "USITC."

This is no ordinary courthouse, and these are no ordinary allegations. We'll get into the nitty-gritty details in later posts, but for now, here are answers to a few basic questions to help you hit the ground running.

Q1. What is the United States International Trade Commission?

The ITC is a federal agency located in Washington, D.C. led by Commissioners who are nominated by the President and confirmed by the Senate.  Similar to other federal agencies, the ITC also employs administrative law judges ("ALJs"), who preside over investigations.

Q2. What does the ITC do?

The ITC maintains the U.S. tariff schedule and investigates, reports, and makes determinations on issues concerning international trade.

Q3. How are patents related to the ITC?

Patents, in addition to other IP such as copyright and trademark, can be enforced before the ITC in what are known as Section 337 Investigations—a name based on the statute that codifies them: Section 337 of the Tariff Act of 1930, now found at 19 U.S.C. § 1337.  To protect domestic industry in the U.S., the ITC can exclude the importation and sale of foreign products if it finds they infringe a patent in an ITC complaint.

Q4. Who is involved in an ITC investigation?

The party filing the lawsuit is the "Complainant," and the party defending the lawsuit is called the "Respondent."  Third parties can also become involved either through subpoenas from a named party, or by submitting statements in various phases of the lawsuit.  The Commission refers to each lawsuit as an "investigation," which the Commissioners must vote to institute.  The Commission also delegates the initial stages of an investigation to be handled by an ALJ.  Although the Commission makes the final decision as to a violation or remedy, the bulk of an investigation occurs before and is decided by the ALJ.

In some instances, a Staff attorney representing the public through the U.S. Office of Unfair Import Investigations may also be assigned to an investigation.

Q5. How much authority does the ITC have?

The ITC has the authority to exclude or seize products at the border through U.S. Customs and can also issue cease and desist orders against specific actions—importing, selling for importation, or selling after importation goods subject to an exclusion order.  If you are a third party subject to a subpoena, the ITC does not have direct authority over your compliance, but can—through a series of specific steps obtain judicial enforcement of such subpoenas in a federal court.

Q6. What are the main differences between an action in the ITC as opposed to a lawsuit in federal court?

First, an ITC investigation is very fast and compressed.  A case filed before the ITC can proceed to essentially the equivalent of a trial before the ALJ in less than a year.  This proceeding is called an "evidentiary hearing."

Second, there is no jury in an ITC proceeding—rather, the evidence is marshaled before the ALJ and results in an ALJ determination that is then subject to review by the Commissioners, who make the final determinations.

Third, the results of an ITC investigation can be swift—blocking the importation of goods at the border in as little as 16 months from institution of an investigation.  However, unlike in federal court, public interest concerns can override exclusions even if a patent is violated.  And, even if the Commission decides to exclude particular goods, the President can still veto that determination.

There are many more qualities of the ITC that make it a unique forum for enforcing IP rights, and what we've described above is only the tip of the iceberg.  Stay tuned for our next post, which will dive into the requirements and procedures for filing a Complaint in the first instance.

More questions? Contact the authors or visit Fish’s Intellectual Property Law Essentials.