Kinik v. ITC: In 2004, the Federal Circuit determined that the language of 271(g) does not apply to Section 337 actions at the ITC. [Opinion] In that decision, court noted that the 271(g) product by process statute explicitly limits itself “for the purposes of this title.”
Thus, when a defendant is accused of improper imports under Section 337, he cannot raise the defenses that the product included material change by subsequent processes or that the imported product is a trivial component of a larger product.
On May 1, 2007, the Senate held testimony regarding a legislative amendment that would apply 271(g) to ITC issues as well. Professor Chris Cotropia presented three specific problems raised by the current differential:
- inconsistent judgments;
- noncompliance with TRIPs; and
- hindrance of the policies behind the exceptions.
AIPLA opposes amendment arguing that it “would only benefit foreign manufacturers accused of unfair trade practices.”