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 [...]

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. [...]

Section 337 of the Tariff Act of 1930, codified at 19 U.S.C. § 1337, authorizes the ITC to declare unlawful the “importation into the United States, the sale for importation, or the sale within the United States after importation. . . of articles that – (i) infringe a valid and enforceable United States patent . [...]

Public interest factors can override the finding of a violation of Section 337 at the ITC.  Upon finding a violation, the administrative law judge (“ALJ”) considers the impact that exclusion orders would have upon (1) the public health and welfare, (2) competitive conditions in the U.S. economy, (3) the production of like or directly competitive articles [...]

At the ITC, each of the Administrative Law Judges (“ALJ”) employ their own unique set of Ground Rules.  Most ALJs have a ground rule that requires production of existing English language translations of any document produced during discovery.  See, e.g., Chief ALJ Luckern Ground Rule 4(v) in Certain Video Game Machines and Related Three-Dimensional Pointing [...]

Patent owners often simultaneously file suits in both the ITC and district court on the same patent(s).  If an ITC investigation is ongoing, an accused infringer can request, as a matter of right, a stay of the parallel district court action under 28 U.S.C. § 1659.  Even if the accused infringer does not request a [...]

In many ways, section 337 practice is similar to patent litigation in the federal district courts.  However, there are a number of subtle, yet important, distinctions.  By way of just one example, hearsay is generally admissible in section 337 proceedings at the ITC. “‘Hearsay’ is a statement, other than one made by the declarant while [...]

When asked to identify the major differences between patent litigation in the ITC and in federal district court, most practitioners would likely identify 1) the domestic industry requirement and 2) the form of relief (injunctive relief but no money damages).  Another difference is that certain defenses to infringement are not available to respondents in the [...]