Patently Protectionist? An Empirical Analysis of Patent Cases at the International Trade Commission
52 Pages Posted: 25 Jun 2008 Last revised: 24 Nov 2008
Date Written: June 24, 2008
The International Trade Commission (ITC) provides a special forum for adjudicating patent disputes involving imports. It offers several advantages over U.S. district courts to patentees, including relaxed jurisdictional requirements, speed, and unique remedies. Unlike district courts, the ITC almost automatically grants injunctive relief to prevailing patentees, and does not recognize certain defenses to infringement. These features have been justified as needed to prosecute foreign infringers who would otherwise evade U.S. district court. However, they have also led to charges that the ITC is protectionist and unfair to defendants, and fosters inconsistency in U.S. patent law.
Based on an analysis of every patent investigation initiated at the ITC from 1995 to mid-2007, this Article assesses these charges. It fails to find support for the first two contentions. ITC cases involve domestic defendants as often as they do foreign defendants, and 72% of the time in combination. Thus, U.S. companies are thus just as likely to be named in ITC actions as defendants as are foreigners. When cases were adjudicated, plaintiffs at the ITC were more likely to win than plaintiffs in district court (58% v. 35%). However, when cases filed in both venues were compared, most of this difference disappeared (54% v. 50%), cutting against claims of an anti-defendant bias. The data, however, provide some support for the third contention. The ITC takes about half as much time to decide cases, is four times more likely to adjudicate a case (44% v. 11%), and more readily awards injunctions to prevailing patentees (100% v. 79%) than district court. However, the ITC cannot award damages, and its decisions do not bind district courts. The relief provided is thus neither complete nor final. This creates incentives for litigants to file in both venues, which is done 65% of the time and creates the possibility of duplicative litigation and inconsistent results.
As the number of ITC-eligible cases expands with the growth in overseas manufacturing, the interface between the venues should be revisited. This Article suggests several ways to strengthen coordination between the ITC and district courts to take into account the increase in parallel litigation and concurrent risk of judicial inefficiency. These include (1) limiting patent jurisdiction at the ITC to cases that otherwise could not be heard in a U.S. district court, and (2) reducing the incentive for cases to be filed in both venues by harmonizing their
rules and remedies.
Keywords: international trade commission, patents, empirical, international intellectual property
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