New ITC Investigations Surge in 2016

InvestigationsThe ITC’s docket experienced a strong uptick in 2016, with new investigations approaching the record highs of 2010 and 2011, the years of the smartphone wars.  54 new investigations were instituted at the ITC in 2016, compared to an average of approximately 39 per year from 2012 to 2015.[1]  The number of new investigations in 2016 was the highest since 2011’s all-time high of 69 investigations.

49 of the investigations instituted in 2016 involved patent infringement allegations, while five investigations involved other alleged unfair acts, including trademark infringement, trade secret misappropriation, and antitrust violations.[2]  The percentage of Commission decisions finding violations of Section 337 experienced a strong uptick from 2015.  In cases where the Commission chose to review the ALJ’s decision, 100% of the Commission’s decisions in 2016 resulted in a finding of violation.

ALJ Decisions[3]

In investigations of alleged Section 337 violations (not including ancillary proceedings), the ITC Judges issued 16 final Initial Determinations (“IDs”) in 2016, with violations found in a little over 56% of those decisions.  This was comparable to 2015, when violations were found in approximately 59% of IDs.  Approximately 67% of patents adjudicated were found to be infringed and nearly 92% were found valid.  Almost 75% of the decisions found the domestic industry requirement satisfied.

Commission Decisions[4]

The biggest statistical difference between 2015 and 2016 was in the Commission’s decisions on violation.  In investigations in which the Commission reviewed the Judge’s decision on violation, the Commission found violations in 100% of those cases, a 30% increase over 2015.  2016’s perfect record on violations where the Judge’s final ID was reviewed stands in sharp contrast with 2014, when the Commission found violations in only 27% of investigations it reviewed.

ITC Blog Statistics

MoFo@ITC constantly tracks Commission and ALJ decisions, including statistics specific to each Judge, to present updated ITC statistics on Section 337 violations, patent infringement and validity, and domestic industry.  Specifically, we track (1) the percentage of investigations in which violations were or were not found, (2) the percentage of patents found infringed or not infringed, (3) the percentage of patents found valid or invalid, and (4) and the percentage of investigations in which domestic industry was found or not found.  We also track the number of investigations instituted by calendar year and pending Federal Circuit appeals.


[1] Not including ancillary proceedings.

[2] The non-patent allegations were as follows:  trademark infringement (Inv. No. 337-TA-981); antitrust violations, trade secret misappropriation, false designation of origin, and unfair competition (Inv. No. 337-TA-1002); false advertising and unfair competition (Inv. No. 337-TA-1013); and trade dress infringement (Inv. Nos. 337-TA-1014 and -1015).

[3] Statistics are based on date of issuance of the public versions of Initial Determinations.

[4] Statistics are based on date of issuance of the public versions of Commission opinions. Statistics do not include investigations in which the Commission determined not to review the ALJ’s ID.