International Trade Commission

When cases of intellectual property infringement involve the importation of infringing goods into the United States, the International Trade Commission (ITC) can be an important platform for domestic and foreign IP litigants, offering an option to quickly settle cases with substantive resolution of both infringement and validity issues. ITC investigations can be used to resolve disputes involving patents, trademarks, copyrights, trade secrets, and unfair competition investigations.

ITC investigations often provide an alternative forum to litigate IP disputes, but they also can be used strategically to provide a parallel proceeding to cases in federal courts, the USPTO, or foreign tribunals, with different and advantageous procedures and remedies.

Benefits of ITC Litigation

While the ITC cannot award monetary damages, it can act in ways that federal district courts can’t. The ITC can look across international borders and take action based on unfair or infringing acts that take place globally. It has the ability to issue exclusion orders which are enforced by the U.S. Customs and Border Protection to block infringing products from entering into the U.S. The ITC can also preserve an importer’s access to United States consumers.

ITC investigations can have many other advantages, including:

• – Faster resolution. ITC cases are generally decided in 12 to 18 months, while district court cases can take two to four years.
• – Broader jurisdiction. The ITC has nationwide subpoena power and in rem jurisdiction over goods imported into the United States.
• – In many cases, the ITC is more likely than a district court to award injunctive relief against an accused infringer.
• – Interference with post-grant proceedings is unlikely. The ITC rarely, if ever, stays an investigation in the event of a petition for IPR or other USPTO post-grant proceedings.
• – ITC investigations are decided by an experienced administrative law judge, as opposed to a jury.

Challenges in ITC Litigation

Time is of the essence when it comes to bringing cases before the ITC. When cases involve advanced technologies, the ability to analyze infringement issues and obtain discovery in a small window of time is critical. ITC cases are governed by an expedited time table and need to follow complex procedural rules. Successful ITC litigation is very demanding, requiring lawyers to have strong knowledge of the patent prosecution process, to be able to manage the interplay between ITC cases and parallel proceedings, and to be able to work efficiently to make ITC rules work to their advantage. Additionally, ITC litigators need to have the scientific or technical background necessary to fully understand the unique technical issues involved with a case and be ready to collaborate with specialized experts and client technical personnel.

With a combination of trial and ITC experience, technical and scientific training, and deep knowledge of IP law, Brooks Kushman’s ITC litigators have successfully represented companies in a wide range of industries. We represent both patent owners and alleged infringers and have the skills to guide them through this intricate and complex area of IP litigation.