19 USC 1337 (Section 337) authorizes the International Trade Commission (ITC) to investigate complaints filed by owners of US patents against allegedly infringing imports. The ITC is run by a panel of six commissioners each serving a nine-year term.
One of the benefits of filing suit in the ITC is speed. Another benefit is its en rem jurisdiction used to block imports regardless of the location of the maker of the infringing product. Similarly, the ITC can issue broad exclusion orders against an entire product line even if some of the importers were not parties to the litigation. Finally, 271(g) is not a defense to patent infringement in ITC cases.
That said, the number of ITC cases filed each year is relatively small compared with the number of federal district cases. In 2007, for instance, 33 ITC investigations were initiated under Section 337. This number has been on the rise over the past decade.
ITC appeals to the CAFC have also been on the rise. The table below shows both the number of ITC appeals and the number of parties appealing (a single ITC action may investigate multiple accused infringers).
Notes:
I am guessing that the dramatic jump in # of appealing parties in 2007 — a nearly ten-fold increase over 2006 — is due in large part to the slew of cell phone manufacturers/providers that appealed the ITC’s decision in the Qualcomm matter. The overall number of cases appealed is only up slightly.
Duckweed and EG – Thanks.
A line of Fuji cases also involves upholding the exclusion of products made by an infringing process. See Fuji Photo Film Co. v. U.S.I.T.C., 386 F.3d 1095 (Fed. Cir. 2004). In that case, while the product itself also appears to infringe, the court did discuss the process infringement extensively.
IP-Esq.,
The answer is that product made by the patented method may be excluded under a 337 Action. See Amgen Inc. v. U.S. Int’l Trade Comm’n, 902 F2d 1532, 1534, 1538-39, 14 U.S.P.Q.2d (BNA) 1734, 1740 (Fed. Cir. 1990) and Kinik Co. v. Int’l Trade Comm’n, 362 F.3d 1359, 70 U.S.P.Q.2d (BNA) 1300 (Fed. Cir. 2004). Please note that Amgen held that use of the patented article (cell culture) to generate material later imported wasn’t subject to exclusion, while Kinik ruled that the patented process that wasn’t infringed because of claim construction, and so the imported product wasn’t an “unfair trade action”. But both cases, at least in dicta, say that imported product made abroad by a U.S. patent process may be subject to exclusion. Hope this helps.
Question for people with ITC remedies knowledge.
If a method of making a product is infringed can the product itself be excluded? Or does it have to be the product itself that is infringed?
Thanks
The line of “appealing parties” may be very misleading because of two factors in combination:
1. The small number of appeals per year
2. The ability of one case having numerous parties to skew the results.
The only meaningful statistic here is that ITC appeals appear to be rising each year for the past several years.
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