The International Trade Commission (ITC) conducts investigations into allegations of unfair practices in import trade, as authorized by Section 337 of the Tariff Act of 1930. In recent years, Section 337 investigations have become a favored forum for intellectual property enforcement, as filings have nearly tripled in the last five years. Most Section 337 investigations involve allegations of patent infringement. The many patent investigations relating to smartphone technology made 2013 a banner year for important ITC developments.
In any ITC patent investigation, the ITC examines three basic factors: the presence of complainant’s domestic industry; whether the respondent infringes one or more U.S. patents; and whether the complainant overcomes respondent’s defenses. If all factors are met, the ITC may issue a cease and desist order, which would put an automatic stop on any future sales of goods already imported by the respondent, or an exclusion order, under which the U.S. Customs and Border Patrol is authorized to prevent all of respondent’s infringing products from entering the country at the border. The President, acting through the U.S. Trade Representative (USTR), has the power to disapprove — essentially a non-appealable veto — the ITC’s orders. Unlike patent infringement actions in U.S. courts, the ITC is not granted the authority to issue an order regarding money damages, but the extremely rapid docket schedule and self-executing remedies can be potent weapons for quick resolution of the underlying dispute.