ITC Begins Pilot on Early Review of Pivotal Issues in Section 337 Cases
The International Trade Commission is beginning a pilot program to test whether early decisions on pivotal questions in Section 337 cases would expedite its investigations. Under the pilot, announced June 24, the administrative law judge would make an early initial determination (ID) on a key issue, like whether a domestic industry practices a patent, within 100 days of the beginning of the investigation. The early decisions on dispositive issues “could limit unnecessary litigation, saving time and costs for all parties involved,” the ITC said.
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According to the ITC, issues ripe for an early ID would include existence of domestic industry, standing, and whether the allegedly infringing product is being imported. Negative determinations on any of those factors prohibit the ITC from providing remedies like exclusion and cease and desist orders, even if all it finds are violations of all other aspects of Section 337. Currently, domestic industry, standing, and importation are decided along with all other issues in Section 337 cases. But through the pilot, by getting to these issues sooner, long and costly investigations on petitions for relief that never had a chance would be avoided.
Only investigations the ITC thinks contain a dispositive issue will be selected for the pilot, the ITC said. If designated for the pilot program, the commission will direct the ALJ to issue an early ID within 100 days of the beginning of the investigation. Limited extensions will be possible. After the early ID is issued, parties will have five days to request review by the full commission. The commission then has 30 days after the early ID to decide whether to review. A decision not to review would make the early ID final, and any reviews would have to be completed within 30 days.
The ITC said it already began one investigation under the pilot program. On March 22, it began a Section 337 patent investigation on laminated packaging, and designated the question of existence of domestic industry for early review.