The U.S. International Trade Commission (ITC) is now among the most important patent enforcement venues in the world. However, the ITC’s patent infringement investigations under Section 337 are not “mere patent litigation.” Regardless of whether one is involved as a complainant or respondent, success in Section 337 proceedings begins with an appreciation of the role of the ITC as an administrative agency that is part of the Washington, D.C.-based federal bureaucracy.
The ITC has long been a go-to forum for enforcing patent rights in certain industry sectors, notably consumer electronics (about 50 percent of all ITC investigations involve products in the high-technology sector and about 70 percent of the investigations involved imports from East Asia). Section 337 proceedings before the ITC became more attractive for patent owners in other industry sectors in the wake of the Supreme Court’s 2006 ruling in eBay v. MercExchange, which held that district courts should not automatically grant injunctive relief in patent cases. Since eBay, the ITC has conducted more full patent adjudications than any district court. While the ITC may now be the best possible venue for blocking importation of infringing products into the U.S. market, treating an ITC Section 337 proceeding as mere patent litigation is a mistake.