ITC Proposes Changes to Rules of Practice & Procedure in Section 337 Patent Cases
The International Trade Commission issued a proposed rule that would change its Rules of Practice and Procedure concerning general application, adjudication, and enforcement in Section 337 patent investigations. The proposed rule would amend the ITC’s regulations at 19 CFR 201 and 210 in order to change filing deadlines and requirements, remove outdated references, “address concerns that have arisen in Commission practice,” etc. Comments on the ITC’s proposed rule are due by Sept. 10.
Sign up for a free preview to unlock the rest of this article
If your job depends on informed compliance, you need International Trade Today. Delivered every business day and available any time online, only International Trade Today helps you stay current on the increasingly complex international trade regulatory environment.
Highlights of the ITC’s proposed rule include:
New requirements for complainants. The ITC proposes to amend 19 CFR 210.12(a) to (1) require the complainant to specify whether it alleges injury to a domestic industry that exists or a domestic industry that is in the process of being established; (2) require the complainant to specify whether it is requesting a general exclusion order, a limited exclusion order, and/or cease and desist order; and (3) require the complainant to identify the accused products with a clear statement in plain English.
Substantial changes to complaint restart institution period. The proposed rule would amend 19 CFR 210.14 to provide that if a complainant significantly amends a complaint prior to institution (by adding, for example, additional respondents or accused products), the amendment would restart the normal 30-day process for determining whether to institute an investigation. This proposed change is in response to substantial amendments in past cases which, according to the ITC, have complicated the ITC’s ability to get public interest comments, placed additional demands on the ITC, and effectively reduced the 30-day period that proposed respondents normally have to review the allegations against them.
Codification of procedure for consolidation of investigations. Another amendment to 19 CFR 210.14 would make uniform and codify its practice concerning consolidating related investigations. A new paragraph would be added to provide that (1) the Commission may consolidate investigations; (2) the presiding administrative law judge may consolidate investigations if both investigations are before the same ALJ; and (3) the chief administrative law judge may consolidate investigations if the investigations are before different presiding ALJs and both presiding ALJs agree that consolidation is appropriate.
Depositions and interrogatories limited. The ITC would amend 19 CFR 210.28 to place limits on depositions and interrogatories. Complainants would be limited to 20 fact depositions as a group, or 5 per respondent, whichever is greater. Respondents as a group would be limited to 20 fact depositions total. If the ITC investigative attorney is a party, he or she would be limited to 10 fact depositions (although the attorney would be permitted to participate in all depositions taken by any parties in the investigation.) Also, each party would be allowed to serve any other party with a maximum of 175 interrogatories.
ITC required to issue public versions within 30 days. The proposed rule would amend 19 CFR 210.5 to provide that the Commission (or the presiding administrative law judge, if the ALJ has issued the document) must issue the public version of a document containing business confidential information within 30 days of issuance of the confidential version. This period would be subject to an extension by the ALJ or the Commission.
Shorter deadlines for enforcement proceedings. The ITC proposes to provide that the administrative law judge will issue an enforcement initial determination no later than 3 months before the target date for formal enforcement proceedings. Also, the Commission would have 45 days to determine whether to review the enforcement initial determination (currently the Commission has 90 days). Deadlines for petitions for review of enforcement initial determinations would accordingly be due within 10 days of service, and responses would be due within 5 days of service of the petition for review.
(See the ITC’s notice for details of many other proposed changes to its rules of practice and procedure, including modifications to deadlines, filing requirements, etc.)