The International Trade Commission (ITC) has become an increasingly popular forum for resolution of patent disputes. Matters move relatively quickly from investigation to decision at the ITC. As a result, generally accepted wisdom holds that speed is the ITC’s primary benefit when it comes to patent infringement matters. In fact, the ITC has a statutory mandate to resolve investigations “at the earliest practicable time” (usually, within 15 months).
But the ITC offers patent holders more benefits than just a fast result. Through exclusion and cease-and-desist orders, the ITC offers patent holders the kind of injunctive relief that seems hard to get from district courts since the Supreme Court’s decision in eBay Inc. v. MercExchange LLC. And—as the recent ITC decision Certain Blu-Ray Disc Players illustrates—ITC proceedings typically offer patent holders a way to continue to pursue their rights during a pending PTO reexamination. Unlike what seems to be the continuing trend in district court actions, Certain Blu-Ray Disc Players seems to show that ITC investigations are seldom stayed pending PTO reexamination.
Opposing the stay, Walker Digital first alleged that the ITC lacked the power to grant a stay of an ITC investigation. Alternatively, Walker Digital argued that the five factors weigh against granting a stay. In particular, Walker Digital argued that the stay would prejudice it because of the amount of time it would take to resolve the PTO reexamination, taking up the remaining life of the patent.
Walker Digital also argued that no relief existed to compensate Walker Digital for delay in resolving the investigation. ITC’s Investigative Staff also opposed the motion for a stay. The ITC Staff also focused on the length of time that would likely be required to resolve the PTO proceedings.