Protecting Domestic Industries at the ITC
Colleen V. Chien
Santa Clara University - School of Law
May 24, 2011
Santa Clara Computer and High Technology Law Journal, Vol. 28, No. 169, 2011
Santa Clara Univ. Legal Studies Research Paper No. 13-11
The International Trade Commission (ITC) provides injunctive relief from imports that infringe intellectual property to “domestic industries.” Differences in opinion about what this term means have divided those who do and those who don’t practice their patents. Should they both have access to the ITC?
This article reviews the statute, its history, and its application to this question. It agrees with the Commission’s finding in Coaxial Cable that the design and history of the statute favor activity that furthers the development and commercialization of technology. It suggests two changes to more closely align ITC practice with the statute.
The ITC should consistently apply the technical prong, whether or not the complainant is practicing or non-practicing. The ITC’s selective application of this requirement is inconsistent with the plain language of the statute and disadvantages practicing complainants relative to their non-practicing counterparts. In applying the economic prong to 337(a)(3)(C) cases, the ITC should take into account the statute’s design and legislative history. In doing so, it should give greater weight to activities undertaken to transfer and commercialize technology, and less to activities that do not.
Number of Pages in PDF File: 25
Keywords: Patent, ITC, International Trade, Patent InjunctionAccepted Paper Series
Date posted: June 4, 2011 ; Last revised: January 22, 2012
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