By Eric Schweibenz
Under Section 337, complainants may seek and obtain temporary relief within a short time period.  Where such a motion for temporary relief is filed, and an investigation is instituted, the time period until a final determination by the Commission on the motion for temporary relief is extremely short, 90 days in most cases, and 150 days in “more complicated” cases.  Although Section 337 complainants rarely seek this form of relief, the Commission is currently considering such a motion in Certain Silicon Microphone Packages (Inv. No. 337-TA-695).  See our November 17, December 18 and 23 posts for more information.

Temporary relief may be granted, under Section 337, to a party to “the same extent as preliminary injunctions and temporary restraining orders may be granted under the Federal Rules of Civil Procedure.”  19 U.S.C. § 1337(e)(3).  In order to obtain temporary relief, a party must show (1) reasonable likelihood of success on the merits, (2) irreparable harm caused if relief is not granted, (3) balance of hardships tipping in the requesting party’s favor, and (4) the public interest does not preclude issuance of relief.  Reasonable likelihood of success on the merits, in Section 337 cases, includes demonstration that a valid and enforceable intellectual property right has been infringed and that a domestic industry exists, or is in the process of being established, that practices the asserted intellectual property right.

If a party wishes to file for temporary relief, in most cases, the complainant must do so at the time of the complaint. 19 C.F.R. § 210.52.  In certain circumstances, however, a motion for temporary relief may be filed after the complaint, but before the institution of an investigation.  19 C.F.R. § 210.53.  This requires a party to prove that extraordinary circumstances, warranting temporary relief, exist and that the party was not aware, and with due diligence would not have been aware, of those circumstances at the time the complaint was filed.  Id.

Regardless of whether the motion is filed with the complaint or afterward, it must be accompanied by (1) a memorandum of points and authorities in support of the motion; (2) affidavits of persons with knowledge of the facts alleged; (3) all documentary information and other evidence intended to be submitted in support of the motion; (4) a detailed statement of facts bearing on whether the complainant should be required to post a bond; and if so required, (5) the appropriate amount of that bond.  19 C.F.R. § 210.52.

Once a proper motion for temporary relief has been made, the opposing party has 10 days after the service of the motion to file a response. 19 C.F.R. § 210.59.  In the response, the opposing party will attempt to show that the complainant lacks a reasonable likelihood of success on the merits, that no irreparable harm will be caused if relief is not granted, that the balance of hardships tips in the opposing party’s favor, and that the public interest precludes issuance of relief.  Like the motion for temporary relief, the response should also include a memorandum of points and authorities; affidavits, where possible; and address the complainant’s bond assertions. Id.

After the complaint, the motion for temporary relief, and the response have been filed, the Commission will determine whether to institute an investigation.  This determination must be made within 35 days of the filing of the complaint and motion for temporary relief.  19 C.F.R. § 210.10.  If an investigation is instituted, the motion for temporary relief is provisionally accepted and forwarded to an ALJ who will make an initial determination (“ID”) as to whether there has been a violation of Section 337 and whether temporary relief is appropriate.  The ALJ then has 70 days after the institution of the investigation to issue the ID.  19 C.F.R. § 210.58.  Like other Section 337 proceedings, the ALJ may deem the temporary relief portion of the investigation “more complicated,” thus extending the deadline for the ID to 120 days from the institution of the investigation.  Id.  By way of example, and as indicated in our December 23 post, ALJ Rogers designated the investigation “more complicated” in Certain Silicon Microphone Packages.

After the ALJ issues an ID on the issue of temporary relief, the Commission has 20 days (30 days in “more complicated” cases) in which to modify or vacate the ID.  19 U.S.C. § 1337(e)(2).  Within that 20 day (or 30 day) period, the parties have the opportunity to submit commentary on any perceived errors in the ID.  If the Commission chooses to award temporary relief, they may do so either in the form of a temporary exclusion order or a temporary cease and desist order.