February 14, 2017Federal Circuit, ITC News

Certiorari Denied For $6.2 Million Consent Order Violation Based On a Patent Later Held Invalid

On November 28, 2016, the U.S. Supreme Court denied a writ of certiorari seeking appeal of the Federal Circuit’s decision to uphold the ITC’s imposition of a $6.2 million penalty against DBN, Inc. and BDN LLC (collectively, “DBN”) for violating a consent order based on an invalid patent. The Federal Circuit upheld the penalty, in part, because the consent order expressly prohibited importation prior to invalidation of the patent. ...›


ITC Proceedings under the Pilot Program for Redesigns and New Products

Since February 2015, when the ITC announced its Pilot Program for expedited rulings on whether ITC exclusion and cease-and-desist orders cover redesigns or new products, the Commission has issued four decisions under the program (see our previous client alert regarding the Pilot Program). Two of the requests for advisory opinions were initially referred to the Office of Unfair Import Investigations (OUII) for consideration, while the other two proceedings were initially handled by the Office of the General Counsel. ...›

January 20, 2017ITC News

New ITC Investigations Surge in 2016

The 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. ...›

2016 --> 2017
January 5, 2017Commission Decisions

Top Developments at the ITC in 2016

In the last year, this blog has covered a number of substantial developments at the International Trade Commission. Among other things, 2016 saw (1) an increased usage of the ITC’s 100-day program for early resolution of potentially case-dispositive issues; (2) a half-dozen decisions on Section 101 patentability defenses; (3) general exclusion orders being issued at a rate above the historical average; (4) a rare full Commission hearing on a Section 337 investigation; and (5) the first antitrust-based investigation in more than 25 years. ...›

December 12, 2016Federal Circuit

A&J Manufacturing v. ITC: Federal Circuit Affirms ITC Decision in Outdoor Grills Case

On December 9, 2016, following oral arguments two days earlier, the Federal Circuit affirmed, without opinion, the ITC’s decision concerning claim construction and non-infringement in Outdoor Grills, Inv. No. 337-TA-895. Although the ITC in Outdoor Grills found a violation of Section 337 by certain respondents, the issues on appeal concerned claim construction and non-infringement findings with respect to other respondents. ...›

Paint Cans
December 1, 2016Federal Circuit

Organik Kimya v. ITC: Federal Circuit Hears Arguments in Appeal of Dispositive Sanctions for Bad Faith Spoliation of Evidence

On October 7, 2016, the Federal Circuit heard oral arguments in an appeal from a decision in Certain Opaque Polymers, Inv. No. 337-TA-883, where the Commission imposed case dispositive sanctions on Respondents for bad faith spoliation of evidence and issued a 25 year limited exclusion order barring the importation of products made by or for Respondents using Complainant’s asserted trade secrets. The appeal was heard by a panel consisting of Judges Lourie, Mayer, and O’Malley.  ...›


Stay? No Way! Commission Denies Another Request to Stay an Exclusion Order

On October 20, 2016, the Commission denied yet another request for a stay of a remedial order in an investigation pending appeal to the Federal Circuit. The Commission’s denial in Certain Marine Sonar Imaging Devices, Inv. No. 337-TA-921, follows a long line of decisions denying stays of remedial orders pending Federal Circuit appeal (with a recent, notable exception in Digital Models), indicating that it continues to be very difficult to stay ITC remedial orders absent an “admittedly difficult legal question” concerning the order. ...›

November 3, 2016Litigation Strategy

Downstream Remedy at the ITC: The Continuing Applicability of the EPROMs Analysis

To remedy violations of Section 337 of the Trade Act of 1930, as amended (“Section 337”), the U.S. International Trade Commission (“ITC” or “Commission”) “shall” issue an exclusion order barring the importation of infringing articles. The default remedy is a limited exclusion order (“LEO”) directed to the infringing imported products of named respondents. ...›