Also, many records are labeled as confidential on the ITC’s website for this case, and this presumably explains the large volume of protective orders in the ITC record. Before the final determination, there will certainly be some transferring of information, particularly confidential information, to the district court, whether via requests to the party that supplied the information, or via a 28usc1659b request.

Due to the relatively fast-paced nature of an ITC proceeding, there is a greater likelihood that the parties may learn of new relevant information after discovery has closed, or at an otherwise too-late date in the ITC proceeding, such that the ALJ denies admission of the new information. If the losing party appeals to the Federal Circuit, it may be denied the opportunity to present arguments based on the new information. The losing party could of course raise the arguments before the district court, but then the right to appeal the ITC decision may be lost.

Res judicata also is a factor at this stage. For example, the ITC’s determination may be that certain patent claims are not invalid, while the district court’s decision, which is based upon consideration of the new information and whatever it deems persuasive from the ITC case, may be that those same patent claims are invalid. In this sense, the fast-paced nature of an ITC proceeding can be used as an effective strategy for either party.