November 5, 2015ITC News

Flurry of New Section 337 Complaints Filed

Although the number of new Section 337 investigations instituted during the past several years has been lower than the peak years of 2011-12, the ITC has experienced a flurry of new complaint filings in the last six weeks. Since late September, eight (8) new Section 337 complaints have been filed with the Commission. Assuming that all these complaints result in institution by the ITC, this would bring the total of new Section 337 investigations instituted to 33 to date during calendar year 2015. ...›

October 12, 2015ALJ Decisions

Access Denied: Foreign Experts and Third-Party Source Code

Administrative Law Judge Theodore Essex recently issued an order denying foreign experts access to third-party source code. Specifically, Judge Essex upheld non-party Microsoft Corporation’s (“Microsoft”) objections and precluded the disclosure of source code and other confidential business information (“CBI”) to experts located in France retained by complainants NXP B.V. and NXP Semiconductor USA, Inc. (collectively, “NXP”). ...›

September 30, 2015ITC Procedures

ITC Proposes Expansion of 100-Day Pilot Program for Early Termination

On September 24, 2015, the ITC published a Notice of Proposed Rulemaking (“NOPR”) to amend several of its Rules of Practice and Procedure, most notably to expand the 100-day pilot program for early termination of Section 337 investigations. The ITC also proposes to clarify that one Section 337 complaint can be divided and instituted as multiple investigations, and that the presiding Administrative Law Judge (“Judge”) can sever one investigation into multiple investigations. ...›

September 28, 2015ALJ Decisions

A Chilly Reception for Section 101 Challenges at the ITC

Outside of the ITC, defendants have been increasingly successful in challenging the patentability of asserted claims under Section 101. Recent decisions by the Supreme Court and the Federal Circuit have clarified, and arguably narrowed, the scope of patentable subject matter, and have repeatedly urged district courts to resolve any Section 101 defenses as soon as possible. ...›

September 18, 2015ITC Procedures

Update: ITC Pilot Program for Redesigns and New Products

As we previously discussed, the ITC launched in February 2015 a pilot program to expedite decision-making in proceedings to determine whether redesigns or new products are covered by outstanding ITC exclusion orders. MoFo’s Brian Busey was recently quoted in a Law360 article discussing the program and possible reasons why parties have not yet elected to use it. ...›

September 11, 2015Domestic Industry

Show Me the Article: The “Articles” Requirement for Domestic Industry Based on Licensing

Until 2014, the ITC’s domestic industry requirement had a counter-intuitive feature—those who manufactured a patented article in the United States faced a greater burden of proving their domestic industry than those who relied on their United States licensing activities. While the former were required to prove that their article practiced the patent-in-suit (known as the “technical prong” of a domestic industry showing), the latter had no such burden. Traditionally, the ITC did not require a complainant to meet the “technical prong” in the form of articles practicing the asserted patents for a licensing-based domestic industry. ...›

August 31, 2015ITC Procedures

Practice Tip: Letters Rogatory at the ITC

Letters rogatory provide a means for a party to request judicial assistance from foreign courts to obtain discovery from foreign third parties. Parties before the International Trade Commission (“ITC” or “Commission”) may use letters rogatory to obtain documents and deposition testimony from foreign third parties that decline to provide the information voluntarily. However, because the letters rogatory process can take considerable time to complete and has many specific procedural requirements, parties should be prepared to commence the process as early as possible in the investigation. ...›

August 24, 2015ITC Procedures

Indecision at the ITC: Ramifications of the ITC’s First Stay of a Remedy Order

On June 11, 2014, the International Trade Commission (the “ITC” or “Commission”) ordered a stay pending appeal to the Federal Circuit of cease and desist orders that the Commission had previously entered against respondents in a 19 U.S.C. § 1337 (“Section 337”) investigation called Digital Models. This marks the first time the Commission has stayed its own remedy orders. ...›