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The Intellectual Property StrategistFeaturesIntellectual PropertyInternational LawLitigationPatent Litigation

Recently Introduced Bill Would Limit ITC 'Domestic Industry by Subpoena'

By Robert Maier
November 01, 2020

Patent infringement disputes in the United States are not only heard in district courts. The U.S. International Trade Commission (ITC), an administrative agency delegated with responsibility over trade disputes, also decides high-stakes intellectual property disputes — with the remedy for the IP rights holder not being damages, but rather an exclusion order that can block a competitor's importation of infringing articles into the U.S. That remedy can be incredibly powerful for companies engaged in stiff competition in the U.S. market.

Section 337 of the Smoot-Hawley Tariff Act of 1930, the ITC's enabling statute, empowers the ITC to handle these patent infringement disputes, though not all patent infringement disputes qualify. Section 337 includes what is known as the "domestic industry" requirement — a requirement that the patent holder seeking to enforce its patent rights at the ITC must establish that it contributes to industry in the U.S. related to those patent rights. The purpose of this requirement as articulated by Congress is to "preclude holders of U.S. intellectual property rights who have no contact with the United States other than owning such intellectual property rights from utilizing section 337." S. Rep. 100-71, 100th Cong., 1st Sess., at 129 (1987).

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