The Use and Abuse of the 'Public Interest' in the ITC and in Article III Courts: Public Interest Comment in 337-ITC-1065

15 Pages Posted: 22 Feb 2019

See all articles by Kristen Jakobsen Osenga

Kristen Jakobsen Osenga

University of Richmond - School of Law

Adam Mossoff

George Mason University - Antonin Scalia Law School, Faculty

Date Written: February 7, 2019

Abstract

This essay was filed as a public comment in an International Trade Commission (ITC) investigation. In this case, an Administrative Law Judge (ALJ) found imported smartphones to contain technology that infringed U.S. patents, but denied issuing an exclusion order given his belief that this was contrary to the “public interest.” This decision reflects a trend in which Article III judges and ALJs are increasingly refusing to issue injunctive remedies against ongoing, commercial infringement of patent rights. This practice is contributing to a systemic degradation in the reliable and effective patents historically secured to innovators by the U.S. patent system.

This essay surveys the historical role of the “public interest” factor in issuing injunctions or exclusion orders as a remedy for patent infringement in both Article III courts and the ITC. It identifies the expansive use of the “public interest” factor following the Supreme Court’s 2006 decision in eBay v. MercExchange, and how this has contributed to a significant decrease in injunctive remedies being requested by or awarded to patent-owners. It highlights the ITC case as an example of this trend, detailing significant evidentiary and legal differences between the use of the “public interest” factor in past ITC investigations and how it was used improperly in this case to deny the exclusion order. In addition to addressing the ALJ’s mistaken assumptions about the global market in smartphones, it also addresses the ALJ’s concern about the U.S. losing its comparative advantage over China in technological innovation. The ALJ is right to be concerned, but by denying a proper legal remedy for patent infringement, the ALJ is in fact contributing to the U.S. losing its competitive advantage in fostering new innovation.

Keywords: efficient infringement, patent holdup, patent holdout

Suggested Citation

Osenga, Kristen and Mossoff, Adam, The Use and Abuse of the 'Public Interest' in the ITC and in Article III Courts: Public Interest Comment in 337-ITC-1065 (February 7, 2019). Available at SSRN: https://ssrn.com/abstract=3330786 or http://dx.doi.org/10.2139/ssrn.3330786

Kristen Osenga (Contact Author)

University of Richmond - School of Law ( email )

203 Richmond Way
Richmond, VA 23173
United States
804-289-8112 (Phone)

Adam Mossoff

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-9577 (Phone)

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