For the second time in less than two months, the U.S. International Trade Commission has directed an administrative law judge to reach a decision on a potentially case-dispositive issue during the first 100 days of a new Section 337 investigation. On June 20, 2016, the Commission directed the presiding judge in Inflatable Products with Tensioning Structures, Inv. No. 337-TA-1009, to issue an initial determination (ID) within 100 days of the institution of the investigation as to whether the complainants have satisfied the economic prong of the domestic industry requirement.
As discussed in a previous post, the Commission announced a pilot program in 2013 under which parties can request that the Commission direct the judge to rule on specified case-dispositive issues within the first 100 days of a new investigation. Under the pilot program, the Commission will then decide whether to review the ID within 30 days after issuance by the judge. If the judge rules against the complainant, the investigation will normally be stayed while the Commission considers the judge’s ruling.
Inflatable Products is the fourth investigation to utilize a 100-day early decision proceeding. The first investigation to use such a proceeding was Products Having Laminated Packaging, Inv. No. 337-TA-874 in March 2013. In that investigation, the issue designated for an expedited ruling was also whether the economic prong of the domestic industry requirement had been met. The other two investigations in the 100-day pilot program were Audio Processing Hardware and Software, Inv. No. 337-TA-949 (blog post), and Portable Electronic Devices, Inv. No. 337-TA-994 (blog post). The issues designated for early resolution in those investigations concerned standing and patent invalidity under Section 101, respectively. The Commission is currently considering whether to make the 100-day pilot program permanent and expand it in some respects.
A hearing on the economic domestic industry issue in Inflatable Products had been scheduled before Judge MaryJoan McNamara for August 15, 2016 with an ID due on October 3, 2016. However, Judge McNamara recently granted a motion to stay the investigation pending resolution of the respondents’ motion to terminate the investigation based on a consent order.
Because only one investigation had utilized a 100-day proceeding prior to 2015, some had questioned the continuing vitality of the 100-day program. However, the recent designation of two investigations for 100-day rulings on potentially case-dispositive issues indicates the Commission’s continuing interest in the program as a means of reaching early resolutions in appropriate cases. The recent 100-day designations indicate that proposed respondents in new investigations should consider requesting 100-day designations when they are able to identify potentially case-dispositive issues that may lend themselves to early adjudication.