By Vanessa P. Bailey, Global Director of Intellectual Property Policy
The US. International Trade Commission (ITC) was established to protect U.S. industry from unfair foreign trade practices. The ITC has tremendous power through its ability to issue a categorical product import ban (“exclusion order”). Over the last several years, the ITC has become a forum for abusive litigation by entities which produce no goods or services and typically do not have a U.S. domestic industry to protect.
Rather than protecting innovative U.S. employers, the ITC has too often become a legal cudgel misused by patent licensing entities to obtain an equivalent of an injunction, a remedy that normally would not be available to them in U.S. District Courts. Since most patent licensing entities do not have a U.S. domestic industry to protect, they serve legal subpoenas on their U.S. licensees and force these companies to participate in litigation against their will, at their expense, and without benefit to the domestic industry.
Additionally, the ITC is required by law to consider whether the harm to the U.S. public interest is so great to therefore prevent a product ban from issuing. But the ITC has not determined that the U.S. public interest stops an exclusion order since the 1980s. A categorical product ban is a disproportionate remedy when most modern products may be subject to thousands of patents and where under current law, U.S. District Courts would deny injunctive relief in the same circumstance.
The Advancing America’s Interests Act clarifies how the ITC defines the public interest and ensures that the public interest is properly examined and placed as a paramount consideration by requiring an affirmative determination that an exclusion is in the public’s interest before issuing an exclusion order.
This new legislation also requires a company subpoenaed to act as a complainant in an ITC case to acknowledge that they are doing so voluntarily before the case can go forward. This will help reduce the abuse at the ITC by ensuring true U.S. domestic industry is served and not just artificially forced by patent licensing entities.
Representatives DelBene and Schweikert’s bill is important legislation that will help bolster the economy and curtail abuse at the ITC.