Patent wars at the US ITC

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Intellectual-property disputes are being adjudicated by the US International Trade Commission in the form of Section 337 disputes, which may result in US Customs banning importation of infringing products. Here’s a long list of open investigations, and here’s a blog dedicated to such disputes. Here’s a patents blog that often covers ITC disputes. I learned of Section 337 disputes from this story about HTC and Apple’s patent war.

A New York Law Journal article describes why IP battles are being waged at the US ITC forum:

The ITC has some distinct advantages for the patent plaintiff as compared to a federal district court. To start with, it is generally not necessary to establish personal jurisdiction and proper venue over each of the respondents, as the commission has in rem jurisdiction over the articles being imported. In addition, the ITC’s procedural schedules are enormously accelerated as compared to the average district court…

The 2006 Supreme Court decision in eBay v. MercExchange made it more difficult for plaintiffs in district court patent litigation to be granted an injunction. Under earlier Federal Circuit precedent, a prevailing plaintiff was virtually guaranteed an injunction, which forced an infringer to settle on the patent holder’s terms or face a complete shutdown of its business. In eBay, the Supreme Court rejected this long-standing rule and instead instructed the lower courts to make a case-by-case determination, based on “well-established principles of equity.”5 This determination is not applicable to exclusion orders in the ITC…

The combination of fast-moving schedules, reduced jurisdictional requirements, and the ready availability of injunction-like remedies make the ITC an ideal forum for the enforcement of patent rights. In addition, the domestic industry requirement, once a significant barrier for NPEs, has become easier to satisfy. As traditional manufacturing facilities abandon the United States, the ITC can still be the forum of choice for those American businesses that manufacture abroad, or even those whose sole business is to exploit patents.

Here’s another piece on the ITC forum, dubbed “outbidding the Supreme Court” (pdf), which says that “a Section 337 action before the ITC may be the most efficient, cost-effective and surefire way for a patentee to obtain the equivalent of a permanent injunction against an infringing party.”

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