It was June 2005 and Intermec Technologies Corp. was in trouble. The Everett, Washington-based company was mired in three different patent infringement suits with New York-based Symbol Technologies Inc., an S&P 500 company with annual earnings of $1.75 billion and a reputation as a fierce courtroom opponent.
The lawsuits over mobile computing technology already had dragged on for more than a year, and it looked like Intermec would be stuck in court for many years to come.
Another factor driving patent owners to the ITC is the fact that it may now be easier to obtain an exclusion order than to get a court injunction against a patent infringer. The Supreme Court's 2006 decision in eBay v. MercExchange toughed the requirements for issuing such injunctions.
"Companies ?? 1/2 are increasingly coming to the ITC, and that is likely to accelerate as a result of the eBay decision," says Thomas Jarvis, a Washington, D.C., attorney who is president-elect of the ITC Trial Lawyers Association.
"The stronger or more technical your case is, the more you want a judge savvy in patent law," Shatzer says. "But if you have some tough arguments to make on the patent side, you may want to be in front of a jury."
The biggest disadvantage of the ITC, from a patentee's point of view, is that the agency cannot award damages. Damages can only be obtained from a court.