Background

The International Trade Commission has established a pilot program to allow its administrative law judges to issue interim initial determinations on fewer than all issues in Section 337 intellectual property rights infringement investigations. The ITC said it is launching this pilot, which applies to all investigations instituted on or after May 12, as part of a broader effort to complete such investigations expeditiously.

Most complaints filed under Section 337 involve patent infringement allegations, but they may also allege infringement of trademarks, copyrights, and other forms of intellectual property; misappropriation of trade secrets; and other unfair acts.

Under this pilot program, the presiding ALJ in an investigation will be able to hold an evidentiary hearing and receive briefing on one or more discrete issues prior to the main evidentiary hearing in order to fully develop the factual record to resolve those discrete issues. Such issues may include infringement, patent invalidity, patent eligibility, standing, or satisfaction of the domestic industry requirement. The ALJ will issue an interim ID on these discrete issues, which will then be subject to petitions for review and responses thereto, followed by prompt ITC decisions on whether to review the interim ID and resolution of any review.

The ITC anticipates that this process will help resolve significant issues in advance of the main evidentiary hearing and could facilitate settlement or otherwise resolve the entire dispute between the parties.

The pilot will be subject to changes during its operation based on feedback from ALJs, the ITC’s Office of Unfair Import Investigations, private parties, and attorneys. The ITC will review the pilot’s performance after two years and decide whether to make it permanent.

For more information on pursuing or mitigating IPR-related import restrictions, please contact attorney Lee Sandler via email or at (305) 894-1000.

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