According to the press release:

David S. Johanson, a Republican of Texas, was sworn in today as a Commissioner of the U.S. International Trade Commission. He was confirmed by the U.S. Senate on October 31, 2011, for the term expiring on December 16, 2018.

Commissioner Johanson served as International Trade Counsel on the Republican staff of the Committee on Finance of the U.S. Senate from 2003 until his appointment. Prior to his employment at the Committee on Finance, he practiced international trade law for six years at the law firm of Stewart and Stewart in Washington, D.C. Earlier in his career, Commissioner Johanson worked for Senator Phil Gramm (R-TX), Representative Wally Herger (R-CA), and Representative George Radanovich (R-CA).

Commissioner Johanson holds a Bachelor of Arts degree from Stanford University, a Master of Philosophy degree from Cambridge University, and a Juris Doctor degree from the University of Texas School of Law.

The U.S. International Trade Commission is an independent, nonpartisan, factfinding federal agency that provides trade expertise to both the legislative and executive branches of government, determines the impact of imports on U.S. industries, and directs actions against certain unfair trade practices, such as patent, trademark, and copyright infringement.

The ITC’s press release states:

Deanna Tanner Okun, Chairman of the United States International Trade Commission (USITC), announced today that Judge Charles E. Bullock has been named the Chief Administrative Law Judge at the USITC.

As Chief Administrative Law Judge, Bullock will provide administrative guidance and leadership to assure a thorough, yet expeditious, processing of the agency’s section 337 investigation caseload.

He will continue to preside in section 337 investigations as well. USITC administrative law judges manage proceedings, preside over evidentiary hearings, and make initial determinations in the agency’s investigations involving unfair practices in import trade. These investigations most often involve allegations of patent and trademark infringement.  Bullock has served as Acting Chief Administrative Law Judge since August 2011, following the retirement of former Chief Administrative Law Judge Paul J. Luckern.

Bullock has served as an administrative law judge (ALJ) at the USITC since May 2002. From 1996 until joining the USITC, Bullock was an ALJ with the U.S. Environmental Protection Agency (EPA). In that position, he conducted hearings and wrote initial decisions in enforcement proceedings brought under a number of environmental laws administered by the EPA.

Before Bullock joined the EPA, he had served for 24 years with the Federal Energy Regulatory Commission (FERC). For the last 12 of those years, he was an ALJ, conducting hearings and writing initial decisions in complex, multi-party cases involving electric utility and natural gas pipeline rates. Prior to assuming his judgeship at FERC, he was a trial attorney and then an Assistant General Counsel at that agency.

Bullock is a 1968 graduate of Bucknell University, where he received a Bachelor of Arts degree in Political Science. He received his Juris Doctor degree from George Washington University Law School in June 1971. He is a member of the Bar of the District of Columbia.

The press release relating to ALJ Pender states:

Deanna Tanner Okun, Chairman of the United States International Trade Commission (USITC), announced today that Judge Thomas Bernard Pender will become an Administrative Law Judge (ALJ) at the USITC effective October 24, 2011. Pender will manage litigation, preside over evidentiary hearings, and make initial determinations in the agency’s investigations involving unfair practices in import trade. These investigations most often involve allegations of patent, trademark, and copyright infringement.

Prior to joining the USITC, Pender served as an ALJ in the Office of Disability Adjudication and Review with the Social Security Administration in Richmond, VA. From July 2005 to September 2010, he was an Administrative Judge with the Office of Hearings and Appeals for the Small Business Administration in Washington, DC. He served as Chief Trial Attorney and the Director of the Contract Disputes Resolution Center for Defense Contract Management Agency from January 2002 to July 2005. Previously, Pender served as a Senior Trial Attorney in the Office of the Chief Trial Attorney of the Air Force at Wright-Patterson Air Force Base, OH; as a Deputy District Counsel for the U.S. Army Engineer District in Baltimore, MD; as a General Attorney/Trial Attorney for the U.S. Army Engineer District in Fort Worth, TX; and while on active duty in the U.S. Army, he served as Assistant Staff Judge Advocate in Bayonne, NJ, and as a Trial Defense Counsel in Tongduchon, South Korea.

Pender received his JD from Emory University Law School, Atlanta, GA, and holds a bachelor’s degree from the Virginia Military Institute. He is a member of the State Bar of Georgia.

The press release relating to ALJ Shaw states:

Deanna Tanner Okun, Chairman of the United States International Trade Commission (USITC), announced today that Judge David P. Shaw will become an Administrative Law Judge (ALJ) at the USITC effective October 24, 2011. Shaw will manage litigation, preside over evidentiary hearings, and make initial determinations in the agency’s investigations involving unfair practices in import trade. These investigations most often involve allegations of patent, trademark, and copyright infringement.

Prior to joining the USITC, Shaw served as an ALJ with the Social Security Administration’s Office of Disability Adjudication and Review (National Hearing Center) in Baltimore, MD. Prior to that, he was an ALJ with the Social Security Administration’s Office of Disability Adjudication and Review in Fayetteville, NC. Shaw served from 1987 to 2010 as an Attorney-Advisor in the USITC’s Office of Administrative Law Judges.

Shaw holds a juris doctor degree from the Washington College of Law at The American University and a bachelor’s degree from George Mason University. He is a member of the Bar of the District of Columbia.

Under the Commission’s proposed amendments, most documents would be required to be filed electronically.  Certain filings would require electronic filing, followed by a paper filing.  The notices provide that the amendments are intended to “increase efficiency in processing documents filed with the Commission, reduce Commission expenditures, and conform agency processes to Federal Government initiatives.”  Under the proposed amendments, parties would continue to electronically file both public and confidential documents using the Commission’s Electronic Document Information System (EDIS).  EDIS, upon submission of a document, would transmit a notice of electronic receipt to the parties.  That notice, however, will not necessarily constitute service of the document.  Specifically, with regard to Section 337 investigations, the presiding ALJ will determine whether electronic service should be permitted and parties will be required to provide written consent in order to be served electronically.

The Commission indicated it would accept written comments regarding these proposed amendments from the public until August 5, 2011.  The Commission encouraged the public to provide commentary on whether the language of the proposed amendments is sufficiently clear and on how the proposed amendments could be improved, providing specific constructive alternatives where appropriate.  Such comments may be submitted to the Commission via its website, by mail, or by hand delivery.  All comments received regarding these amendments will be posted on the Commission’s website.

The May 2 notice follows the issuance of the Commission’s Supplement to the Strategic Human Capital Plan 2009-2013 (the “Report”) on January 18, 2011, which called for a reduction in OUII’s role in view of budget constraints.  The Report states that, going forward, “OUII will give the highest priority to certain functions that draw upon its particular expertise while eliminating or reducing efforts devoted to other functions.”  To that end, OUII will continue to review draft complaints prior to filing and advise the Commission on whether to institute investigations.  However, after an investigation is instituted, the Report requests that “OUII place the highest priority on issues unique to section 337 and continue its efforts:  a) to ensure that the investigation is fully developed, b) to resolve procedural disputes without the need to resort to the presiding ALJ, and c) to facilitate settlement.”

Accordingly, the Report states that “in certain investigations, OUII will participate in a selective manner on those issues on which it is able to provide the greatest added value and expertise.”  Additionally, “OUII will cease to be a party altogether in a subset of section 337 cases, which are less likely to draw upon its expertise.”

The Report states that these changes are “in no way an adverse reflection on the quality or importance of OUII’s past contributions, but rather an effort by the Commission to take a balanced approach to adequately funding the ITC’s statutory missions and meeting government-wide obligations in a prudent, fiscally responsible manner.”

In view of the above, the Report states that the Commission will allow a vacant OUII supervisory attorney slot to be filled, and two OUII staff attorneys that were brought on pursuant to over-hire authority, to remain.  However, the number of OUII staff attorneys will be allowed to fall from the current 17 (which includes the two over-hires) to 15 through attrition.

The new rule took effect as of May 2, the date of the notice.  According to the notice, “[t]he new rule will have no substantive effect on Commission practice in conducting Section 337 investigations” but “will allow OUII the flexibility to reassign attorneys to cases as necessary without having to publish notices announcing the change in the Federal Register.”

If the petitioner was previously found in violation of Section 337 and requests a determination that it is no longer in violation, or requests modification or rescission of an order issued pursuant to Section 337(d), (e), (f), (g), or (i), the burden of proof is on the petitioner.  See 19 C.F.R. § 210.76(a)(2).

A public hearing on the petition may be held either before the Commission, or before an ALJ who then issues a recommended determination (RD) to the Commission.  After considering the information placed on the record, the Commission will take such action as it deems appropriate.  See 19 C.F.R. § 210.76(b).  Importantly, there are no statutory or regulatory time limits on Rule 210.76 proceedings.  In certain cases, a Commission order modifying an exclusion order may be appealed to the Federal Circuit.  See, e.g., Allied Corp. v. ITC, 850 F.2d 1573, 1579-80 (Fed. Cir. 1988).

In addition, under Rule 210.77, the Commission may, in the event of a temporary emergency with formal enforcement proceedings pending, immediately modify or rescind a prior order without hearing or notice.  Such immediate action would be taken when necessary to prevent the violation of a Commission order and when “subsequent action by the Commission would not adequately repair substantial harm caused by such violation.”  19 C.F.R. § 210.77(a).  However, before taking such action, the Commission must consider the effect of such action on “the public health and welfare, competitive conditions in the U.S. economy, the production of like or directly competitive articles in the United States, and U.S. consumers.”  19 C.F.R. § 210.77(b).

There have been several examples of modification proceedings in practice.  For instance, in Certain Steel Rod Treating Apparatus and Components Thereof (Inv. No. 337-TA-97), the Commission invoked its power under Section 337(h) to modify or rescind orders due to changed conditions.  In that investigation, the Commission had issued an exclusion order based in part on the finding that the subject patent was valid.  Thereafter, respondents successfully argued in district court that the patent was invalid and unenforceable.  As a result, the Commission revoked the exclusion order.

Likewise, in Certain Composite Wear Components and Welding Products Containing Same (Inv. No. 337-TA-644), the Commission recently temporarily rescinded its limited exclusion order and cease and desist order against respondents pending resolution of the validity of the subject patent by the Federal Circuit.  The patent had been declared invalid by a district court in a declaratory judgment action brought by respondents.  See our January 20, 2011 and February 14, 2011 posts for more details.

The Commission may not, however, modify the remedy while parallel litigation is still pending in district court.  For example, in Certain Integrated Repeaters, Switches, Transceivers and Products Containing Same (Inv. No. 337-TA-435), the Commission did not delay issuing a limited exclusion order when there was a concurrent district court action involving the subject patent, noting that “the Commission’s rules provide adequate means for modification of an exclusion order if and when that should become necessary.”  Comm’n Op. on Remedy, Public Interest and Bonding at 22 (Aug. 16, 2002).

Design-arounds frequently give rise to modification proceedings.  For example, in Certain Amorphous Metals and Amorphous Metal Articles (Inv. No. 337-TA-143), the Commission had commenced Section 337 proceedings against several importers of steel products to determine whether the processes used to make the imported products would infringe a patent held by Allied Corporation.  That investigation led to the issuance of a general exclusion order for the importation or sale of amorphous metal articles or alloys made by the infringing processes.  The Commission then granted petitions for advisory opinion proceedings filed by respondents who sought advice that the importation of articles made by their “newly-developed” processes would not violate the exclusion order.  The Commission also sua sponte initiated exclusion order modification proceedings, which were consolidated with the advisory opinion proceedings for hearing.  The presiding ALJ issued an initial advisory opinion (IAO) and RD that the new processes did not infringe Allied’s patent, and recommended modification of the exclusion order.  Allied petitioned the Commission to review the ALJ’s IAO and RD.  Upon review, the Commission issued an advisory opinion supplementing the ALJ’s IAO, as well as an order modifying the exclusion order.  The modified order set out procedures to be followed by those desiring to import articles covered by the order, which included:  (1) petitioning the Commission to institute further proceedings as appropriate to determine whether the amorphous metal articles sought to be imported fall outside the scope of the order and therefore allowed entry into the U.S., and (2) certifying to the U.S. Customs Service that the articles sought to be imported were manufactured by a process that the Commission determined to be outside the scope of the order.  On appeal, the Federal Circuit affirmed the Commission’s modified exclusion order, but held that the advisory opinion was not a final determination and thus not reviewable.  Allied Corp., 850 F.2d at 1578-80.

Similarly, in Certain Wire Electrical Discharge Machining Apparatus and Components Thereof (Inv. No. 337-TA-290), the Commission had instituted formal enforcement proceedings to determine whether respondents’ newly-designed wire electrical discharge machining apparatus infringed certain claims of complainant’s patent, in violation of earlier cease and desist orders.  Those proceedings were terminated on respondents’ motion after a district court granted partial summary judgment that the newly-designed apparatus did not infringe the claims of the patent covered by the Commission’s cease and desist orders.  See Notice of Termination of Formal Enforcement Proceeding, 55 Fed. Reg. 51356 (1990).

Additional examples of “changed conditions of fact or law” giving rise to modification proceedings are set forth below:

In Certain Miniature Plug-In Blade Fuses (Inv. No. 337-TA-114), the Commission had issued a general exclusion order for imported miniature plug-in blade fuses having a “product configuration and/or packaging” that simulated complainant’s trade dress.  Thirteen years later, a German company not involved in the original investigation challenged the validity of complainant’s trademark registrations in district court, successfully arguing that the individual features of complainant’s fuse housing and the overall configuration of those features were functional, thus rendering the registrations invalid and unenforceable.  The Commission instituted a modification proceeding sua sponte and solicited submissions from interested persons and entities, but did not hold a public hearing or delegate the proceeding to an ALJ.  Having found that the conditions which led to the general exclusion order no longer exist, the Commission modified the order by deleting the reference to product configuration.  See Notice of Exclusion Order Modification (Mar. 20, 2002).

In Certain Novelty Glasses (Inv. No. 337-TA-55), the Commission had conducted an investigation of the alleged unauthorized importation of certain novelty beverage glasses that infringed complainants’ trademarks and trade dress, finding a violation of Section 337 and issuing an exclusion order.  The exclusion order required complainants to report to the Commission, on a semi-annual basis, whether complainants were continuing to use the subject trade dress.  When complainants failed to submit the required reports, the Commission ordered complainants to show cause why the exclusion order should not be rescinded pursuant to Interim Rule 211.57.  Thereafter, the Commission modified the exclusion order to state that, if complainants fail in the future to timely comply with the reporting requirement, and if they also fail to submit the required information within thirty days of receiving written notice from the Commission that the reporting requirement has been violated, then the Commission may rescind the exclusion order without further notice or proceedings.  See Comm’n Notice of Modified Exclusion Order, 57 Fed. Reg. 12339 (1992).

In Certain Plastic Encapsulated Integrated Circuits (Inv. No. 337-TA-315), the Commission had issued a limited exclusion order and cease and desist orders upon finding a violation of Section 337 in the unlicensed importation of circuits manufactured by an infringing process.  The orders did not explicitly cover licensed products, and the limited exclusion order allowed entry of products that the manufacturer or importer certified were covered by a license.  The cease and desist orders contained quarterly reporting requirements.  Complainant Texas Instruments (TI) petitioned for modification of the orders, asking the Commission to decide the dollar amount of patented product respondent Analog could import under a limited license Analog had acquired when it purchased a cross-licensee (PMI) of TI.  Pursuant to Interim Rule 211.57, the Commission provisionally accepted TI’s position that Analog could only sell up to the amount of PMI’s sales of licensed plastic encapsulated integrated circuits at the time of its acquisition ($15 million), and published a notice in the Federal Register setting a schedule for responses.  Analog and the Commission Investigative Staff argued in opposition that, under the cross-license, Analog could sell patented product up to the amount of PMI’s sales of all licensed products at the time of acquisition, or $94 million.  The Commission decided in favor of Analog, but agreed with TI that the reporting provision in the cease and desist orders should be modified to ensure that Analog’s sales do not exceed the $94 million ceiling.  See Modified Order to Cease and Desist (July 2, 1993).

In Certain Hardware Logic Emulation Systems and Components Thereof (Inv. No. 337-TA-383), complainant Quickturn had filed a motion for temporary relief simultaneously with its complaint, which was provisionally accepted by the Commission.  The ALJ subsequently issued an initial determination granting Quickturn’s motion, which was adopted by the Commission.  The Commission determined that a temporary limited exclusion order and a temporary cease and desist order directed to respondents was the appropriate form of temporary relief, and that bond would be set at 43% of the entered value of the imported articles.  Quickturn later petitioned the Commission under Rule 210.76 for an increase in respondents’ TEO bond rate from 43% to 180% of entered value of the subject emulation systems in light of the entered values that respondents had declared to the U.S. Customs Service, arguing that evidence gathered during the permanent relief phase of the investigation revealed that the TEO bond rate established during the temporary relief phase was inadequate to protect Quickturn from injury.  The Commission amended the temporary exclusion order to increase the TEO bond rate to 180% when the entered value did not equal the transaction value as defined in 19 C.F.R. § 152.103.  See Comm’n Op. on Pet. to Modify Temporary Relief Bond (Sept. 27, 1997).

According to the press release:

Vice Chairman Williamson was nominated to the USITC by President George W. Bush on September 7, 2006; renominated on January 9, 2007; and confirmed by the U.S. Senate on February 1, 2007. He was sworn in as a member of the Commission on February 7, 2007, for a term expiring on June 16, 2014.

Vice Chairman Williamson has more than 40 years of experience in the international and trade policy fields. Prior to his appointment, he was for seven years President of Williamson International Trade Strategies, Inc., a New York-based consulting firm that advised clients on legal, policy, and regulatory issues affecting international trade and business. As a consultant, he worked with over 20 U.S. Agency for International Development (USAID) and other donor- funded projects, advising countries on World Trade Organization (WTO) accession, compliance, and participation; he has also conducted WTO and other trade-related training programs all over the world. Much of his work focused on trade with Africa and the Middle East.

From 1993 to 1998, Vice Chairman Williamson was Deputy General Counsel in the Office of the U.S. Trade Representative (USTR). In this position, he served as chairman of the interagency Section 301 Committee, which investigated foreign trade barriers, and worked on implementing legislation for the WTO and the North American Free Trade Agreement. He served as acting general counsel for seven months, helping manage a 14-attorney office that was engaged in more than 30 dispute settlement proceedings and which was named best government international law office in May 1997. Vice Chairman Williamson played a role in developing President Bill Clinton’s Partnership for Economic Growth and Opportunity in Africa initiative and represented USTR in negotiations with the Congress on the African Growth and Opportunity Act legislation.

Following his USTR service, Vice Chairman Williamson was Vice President for Trade, Investment, and Economic Development Programs at the Africa-America Institute in New York. From 1985 to 1993, he was the manager of trade policy for the Port Authority of New York and New Jersey. Prior to that, Vice Chairman Williamson served for 18 years as a Foreign Service Officer with the U.S. Department of State.

Vice Chairman Williamson holds a Bachelor of Arts degree in history from Brown University, a Master of Arts degree in international relations with an emphasis on African studies and international economics from the Johns Hopkins School of Advanced International Studies, and a Juris Doctor degree from the George Washington University Law School. He is married to Cheryl A. Parham, has two children, Patrick and Elizabeth, and resides in New York City.

According to the press release:

Jimmie Reyna is a partner in the Washington, D.C. office of the law firm Williams Mullen, PC.  He is a renowned international trade lawyer respected for his deep expertise in trade policy, business regulation, and compliance law. He also has a distinguished track record of leadership in the Hispanic legal community.

Reyna joined Williams Mullen as a partner in 1998.  Previously, he practiced with the firm of Stewart and Stewart starting as an associate in 1986 and becoming a partner in 1993.  His Washington, D.C.-based practice has emphasized work on antidumping and countervailing duty cases, as well as trade policy and trade negotiation matters.  Reyna began his legal career in New Mexico as an associate at the insurance defense law firm of Shaffer Butt, Thornton & Baer from 1979-1981, and he had his own law practice in Albuquerque from 1981 to 1986, handling civil rights, domestic relations, immigration, and criminal law matters, in many instances on a pro bono basis.

As a recognized expert in the field of international trade law, Reyna has since 1994 been a U.S. panelist for disputes arising under Chapter 19 of the North American Free Trade Agreement (NAFTA), addressing antidumping and countervailing duty cases.  He also has been on the U.S. Indicative List of Non-Governmental Dispute Settlement Panelists for disputes arising under the dispute settlement mechanism of the World Trade Organization (WTO) since 1995.  He has published two books on international trade, and has a third, International Trade Laws and Customs Regulations of Latin America, slated for publication later this year.

Reyna served as National President of the Hispanic National Bar Association (HNBA) in 2006-07, and has held several leadership positions on American Bar Association (ABA) committees and sections.  He has served on numerous boards and councils, including those of the Community Services for Autistic Adults and Children, the Advisory Council of the Mid-Atlantic Hispanic Chamber of Commerce, the National Hispanic Leadership Agenda, the HNBA Foundation, the U.S.-Mexico Law Institute, the Albuquerque Hispano Chamber of Commerce, and the Hispanic Culture Foundation.  He was honored with the HNBA’s Extraordinary Leadership award in 2007, and has been named to the “Super Lawyers” list in Washington, DC (2007, 2009, 2010) and nationally (2009), as well as to the “Best Lawyers in America” list (2010 and 2011).

Reyna was born and raised in New Mexico.  He received his B.A. from the University of Rochester in 1975 and his J.D. from the University of New Mexico School of Law in 1978.

According to the article:

The International Trade Commission has enjoyed soaring popularity of late.  Indeed, the ITC is on pace this year to see its docket of so-called 337 patent investigations nearly double from where it stood in 2006.  That was the year the U.S. Supreme Court handed down a decision that limited the ability of federal district court judges to grant injunctive relief in patent infringement cases.  That decision immediately raised the ITC’s profile, thanks to the agency’s ability to issue exclusion orders that bar infringing products from entering the United States.  “Ever since the Supreme Court restricted injunctive relief, plaintiffs have been rushing toward us.  That’s all we do here,” says Luckern, who oversees judges, assigns cases, sets deadlines for when investigations must be completed, and hears claims himself, including separate recent disputes involving Nokia Corporation, Apple Inc., and Panasonic Corporation.  Luckern has also traveled throughout Asia, educating foreign lawyers about the intricacies of ITC patent disputes.  No wonder foreign-based companies are increasingly taking their patent wars to the commission.