In Section 337 actions before the International Trade Commission (the “Commission”), the Office of Unfair Import Investigations (the “Commission Investigative Staff” or “OUII”) serves as an independent third party representing the public interest.  OUII’s principal task is to help create a complete record on all contested issues so that the Commission can properly enforce the [...]

Under 28 U.S.C. § 1659(a), upon timely request of a Section 337 Respondent, who is also a party in a civil action, a “district court shall stay, until the determination of the Commission becomes final, proceedings in the civil action with respect to any claim that involves the same issues involved in the proceeding before [...]

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 [...]

When parties to a Section 337 investigation settle their dispute, whether through a license agreement or otherwise, the parties may terminate the investigation by filing a motion under Commission Rule 210.21(a)(2).  However, any motion to terminate the investigation based on a settlement agreement must include:  (1) copies of the licensing or other settlement agreements, (2) [...]

In Section 337 investigations, the party that prevails before the Commission is not entitled to appeal to the U.S. Court of Appeals for the Federal Circuit the Commission’s final determination, and is not automatically a party to an appeal brought by the party that lost before the Commission.  However, the prevailing party is entitled to [...]

Section 337(c) states that “all legal and equitable defenses may be presented in all cases” before the ITC.  The Federal Circuit has explained that the Commission recognizes the same defenses and applies the same burdens of proof in patent cases as do the district courts.  Lannom Mfg. Co. v. United States Int’l Trade Comm’n, 799 [...]

Following the issuance of an exclusion order by the Commission in a Section 337 investigation, any person seeking a determination that its redesigned products do not violate such exclusion order may seek (1) an advisory opinion under Commission Rule 210.79; and/or (2) an administrative ruling from U.S. Customs under 19 C.F.R. §177.
Under Commission Rule 210.79, [...]

In Section 337 actions, the domestic industry requirement includes two prongs: (1) the economic prong, which involves investment activities, and (2) the technical prong, which involves the practice of the asserted intellectual property right.
Subsection 337(a)(3) defines domestic industry as follows:
   
An industry in the United States shall be considered to exist if there is in the [...]

There are no general ITC rules regarding the procedure for how an Administrative Law Judge (ALJ) is to construe claims and, therefore, claim construction is ALJ specific.  Historically, claim construction testimony and evidence in section 337 investigations has been presented during the evidentiary hearing along with other arguments, including, e.g., infringement and invalidity and, thus, [...]

Respondents involved in patent infringement investigations at the ITC typically raise affirmative defenses in response to a Section 337 complaint.  Similar to district court practice, respondents may also assert counterclaims.  In Section 337 actions, however, counterclaims are automatically removed to a U.S. District Court of appropriate venue so as not to delay the ITC investigation.
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