Patents Absent Adversaries

49 Pages Posted: 8 Jun 2016 Last revised: 15 Jul 2016

Date Written: June 6, 2016


The United States relies on an adversarial system of dispute settlement. And yet, in a tribunal of steadily growing importance for intellectual property disputes — the International Trade Commission (ITC) — certain cases proceed without the benefit of participation from adverse parties. The ITC’s determinations are not limited to the defaulting parties but rather are applied widely through the in rem relief of general exclusion orders (GEOs) enforced at the U.S. border to keep infringing goods out of the country. A separate form of adversarial exclusion follows infringement determinations made by U.S. Customs and Border Protection (Customs) and appeals therefrom. This article identifies the phenomenon of adjudicating patents absent adversaries and argues that it is both inefficient and ineffective to construe patent claims without the guiding context of a controversy. Absent adversaries, the public interests that are served by robust adversarial participation in patent disputes go unrepresented.

The solution that is most consonant with our adversarial system and the most practical to implement would delay time-intensive adjudication until interested adversaries are present. Under this proposal, protests of exclusions under GEOs that require complex claim construction and infringement determinations may be referred back to the ITC for inter partes proceedings. This change would allow importers affected by GEOs to protest them before ALJs who are familiar with the case and technology and would also allow patent holders to participate in proceedings in which they have a direct interest.

Keywords: Patent, International Trade Commission, ITC, Adversarial System

Suggested Citation

Rajec, Sarah R.W., Patents Absent Adversaries (June 6, 2016). Sarah R. Rajec, Patents Absent Adversaries, 81 Brook. L. Rev. 1073 (2016), Available at SSRN:

Sarah R.W. Rajec (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

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