United States International Trade Commission - Section 337 Patent Investigations

Effective November 15, 2011, the United States International Trade Commission rules for Section 337 patent investigations have been amended to require that with the filing of complaint, the complainant file a separate statement of public interest.

This statement must address how the requested relief (typically an exclusion order) could "affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers."

In addition, under the new rule, when a complaint is filed, the Commission will publish a notice inviting comments from the public and proposed respondents on these public interest factors.

Finally, under the new rule, the complainant will have an opportunity to file a written response to any comments offered by the public or proposed respondents.

While examination of public interest factors has always been part of ITC proceedings, in the past, such consideration typically occurred at the end of the investigation and was not within the scope of the hearing before the Administrative Law Judge.

Under the new rule, not only will these issues be considered at the outset, but the Commission may order that the Administrative Law Judge take evidence and issue a recommended determination on these issues.

What does this mean for litigants before the ITC?

Under the new rules, complainant's must, and respondents should, prepare public interest statements at the outset which address competitive conditions, impact on consumers, and production of competitive articles.

Further, the parties must be prepared for these issues to be litigated in the hearing phase before the Administrative Law Judge.

Ocean Tomo's Expert Testimony practice is well versed in ITC proceedings and has the experience, knowledge and capabilities to marshal the most compelling positions and evidence on this newly important public interest analysis.

Joel Lutzker is Ocean Tomo's General Counsel and a Managing Director in the Transactions Group. Mr. Lutzker has over 30 years of experience in patent litigation and transactions. Mr. Lutzker has been first chair litigation counsel in patent cases in federal district courts throughout the country, has argued on numerous occasions before the United States Court of Appeals for the Federal Circuit and has been principal counsel and author of several amicus briefs on significant patent cases before the United States Supreme Court.

Contact: JoelLutzkerBlogs@OceanTomo.com