On September 29, 2022, the United States International Trade Commission (ITC) announced a return to in person hearings, including Section 337 Investigations.
Section 337 investigations conducted by the ITC often involve claims regarding intellectual property rights including allegations of patent infringement, trademark infringement, and trade secret misappropriation against goods being imported into the United States. The primary remedy available in 337 investigations is an exclusion order directing Customs to stop the importation of infringing products into the United States.
Ocean Tomo’s financial experts have significant experience with 337 investigations. We have assisted counsel in every stage of 337 investigations, from acquiring products and evaluating domestic industry and public interest considerations prior to filing, through assisting with settlement discussions.
A patent infringement claim was brought before the ITC in the matter of Certain Audio Players And, Controllers (Investigation: 337-TA-1191). Sonos brought suit against Google for infringing several patents relating to music streaming, playback, and distribution. Ocean Tomo offered testimony relating to the existence of a domestic industry, remedy, and bond. Consistent with Ocean Tomo’s opinions, the ALJ granted summary determination that the domestic industry requirement had been satisfied. That ruling was later affirmed by the Commission, which also affirmed Ocean Tomo’s opinions relating to remedy and the amount of a bond.
A manufacturing Trade Secret Misappropriation claim was brought before the ITC in the Matter of Certain Botulinum Toxin Products (Investigation: 337-TA-1145). Medytox brought suit against several respondents who were accused of importing botulinum toxin products that misappropriated certain manufacturing related trade secrets. Ocean Tomo offered testimony related to the existence of a domestic industry and whether any such domestic industry would be destroyed, or substantially injured, by the importation of the infringing products. Consistent with Ocean Tomo’s opinions, the Commission found that the domestic industry requirement had been satisfied and that respondent’s importation and sale of the infringing botulinum toxin product threatened to destroy, or substantially injure, Medytox’s domestic industry and/or domestic industry products.
Earlier this month, Eric Carnick and I shared insights on Shifts in US Merchandise Trade Reported by the ITC. The ITC trade report provides an annual examination of trends in U.S. merchandise trade across several sectors and identifies markets that are the subject of significant importation activity. Unsurprisingly, the importation data is entirely consistent with the nature of the adjudication activities taking place at the ITC. For example, in 2021, 65% of new Section 337 Complaints related to electronic products, the product category accounting for more imports than any other during that same year. Consequently, domestic competitors facing international competition and international competitors importing into the U.S. should understand the nature of the ITC and the available remedies it offers with respect to patent infringement.
To learn more about Ocean Tomo’s work before the ITC, visit https://www.oceantomo.com/services/expert-testimony-international-trade-commission/ or contact Michael K. Milani at firstname.lastname@example.org or +1 (312) 327-4417.