Protecting Domestic Industries at the ITC

25 Pages Posted: 4 Jun 2011 Last revised: 3 Jan 2015

See all articles by Colleen V. Chien

Colleen V. Chien

Santa Clara University - School of Law; Stanford University - Management Science & Engineering; Columbia University

Date Written: May 24, 2011

Abstract

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.

Keywords: Patent, ITC, International Trade, Patent Injunction

Suggested Citation

Chien, Colleen V., Protecting Domestic Industries at the ITC (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. Available at SSRN: https://ssrn.com/abstract=1856608

Colleen V. Chien (Contact Author)

Santa Clara University - School of Law ( email )

500 El Camino Real
Santa Clara, CA 95053
United States
408-554-4534 (Phone)
408-554-4426 (Fax)

Stanford University - Management Science & Engineering ( email )

473 Via Ortega
Stanford, CA 94305-9025
United States

HOME PAGE: http://https://sites.google.com/view/colleenchien/

Columbia University ( email )

3022 Broadway
New York, NY 10027
United States

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