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The Domestic Industry Requirement at the ITC

By Dervis Magistre

A patent owner may block the importation of infringing products through an exclusion order obtained as a result of a ' 337 investigation conducted by the U.S. International Trade Commission (“ITC” or “Commission”). Such an investigation is available only if a domestic industry exists with regard to the asserted patent. The domestic industry requirement has two prongs, one economic and the other technical. A complainant can satisfy the economic prong by proving: 1) significant investment in plant and equipment; 2) significant employment of labor or capital; or 3) substantial investment in the exploitation of the patent, including engineering, research and development, or licensing.

Two recent decisions of the ITC examine the economic prong in different factual contexts. In In the Matter of Certain Multimedia Display And Navigation Devices And Components Thereof, And Products Containing Same (337-TA-694), the complainant Pioneer Corporation “relie[d] exclusively on its investments in licensing the asserted patents” to satisfy the economic prong of the domestic industry requirement. In In the Matter of Certain Printing And Imaging Devices And Components Thereof (337-TA-690), the complainant Ricoh Company, Ltd. tried to satisfy this requirement by relying on the “service and repair expenses” associated with a line of printers manufactured abroad and sold in the United States. In both cases, the ITC ruled that the complainants failed to meet the domestic industry requirement.

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