Patent Pledges at the International Trade Commission

Patent Pledges - Global Perspectives on Patent Law's Private Ordering Frontier, Jorge L. Contreras and Meredith Jacob, eds., New York: Edward Elgar, 2016, Forthcoming

16 Pages Posted: 8 Jan 2016 Last revised: 8 Feb 2021

See all articles by Elizabeth I. Winston

Elizabeth I. Winston

Catholic University of America (CUA) - Columbus School of Law

Date Written: January 6, 2016

Abstract

The United States International Trade Commission (“ITC”) investigates alleged trade violations of Section 337 of the Tariff Act of 1930, as amended (19 U.S.C. § 1337) including importation of products infringing patents. This paper seeks to explore the impact of voluntary public commitments made by patentees, limiting the enforcement and exploitation of their patents, on the role of the ITC in protecting domestic industry. The ITC exists to protect domestic industry, and not the patent. A patent pledge may preclude the seeking of injunctive relief, but that goes to the patent itself. Exclusion orders are an appropriate remedy for infringement of a patent subject to a patent pledge, unless the exclusion order is contrary to the public interest. An exclusion order is not an injunction, and can be not conclusively precluded by a patent pledge. The exclusion order is a statutory mandate that can be overcome only by evidence that the statutorily enumerated public interest factors are frustrated. The availability of an exclusion order remains critical to a continuing balance of encouraging contribution to standard setting bodies, while still allowing access to standards, preventing unfair competition and protecting our domestic industry.

Keywords: Patents, Intellectual Property, ITC, patent pledges, standard essential patents

Suggested Citation

Winston, Elizabeth I., Patent Pledges at the International Trade Commission (January 6, 2016). Patent Pledges - Global Perspectives on Patent Law's Private Ordering Frontier, Jorge L. Contreras and Meredith Jacob, eds., New York: Edward Elgar, 2016, Forthcoming , Available at SSRN: https://ssrn.com/abstract=2711929

Elizabeth I. Winston (Contact Author)

Catholic University of America (CUA) - Columbus School of Law ( email )

3600 John McCormack Rd., NE
Washington, DC 20064
United States

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