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Patent owners that prevail in an International Trade Commission (ITC) investigation can significantly disrupt the business of the opposing party. On a finding for the patent owner, the ITC issues an exclusion order, preventing the opposing party from importing the infringing products into the United States. But as shown in the recent ITC determination in Certain Audio Players and Controllers (Inv. No. 337-TA-1191), proving non-infringing redesigns can mitigate the disruptive effects of such an exclusion order. This article provides an overview of redesigns at the ITC, a discussion of the ITC’s recent determination in Certain Audio Players and Controllers, and identifies some considerations to keep in mind when litigating redesigns at the ITC.
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