Guest Post By Michael G. McManus< ?xml:namespace prefix ="" o />
Traditionally, section 337 complainants at the ITC have enjoyed a greater chance of success than district court plaintiffs. The historical complainant win rate at the ITC has been calculated as 58%. This contrasts with a district court patentee success rate of 32% (considering both summary judgment and trial stages). In 2010 and 2011 however, there was an unprecedented spike in the number of cases filed with the ITC. These complainants fared poorly with a win rate well below the historical norm. For section 337 complaints filed in 2012, however, both the number of cases and the win rate have reverted to recent historical norms.
In calendar year 2008, there were 36 section 337 complaints filed. Of these, 20 were resolved by settlement prior to the issue of an initial determination and 16 were resolved by administrative law judge (ALJ) decision (either summary determination or final initial determination). These 16 ALJ decisions were evenly split – 8 were resolved in favor of the complainant and 8 in favor of the respondent yielding a win rate of 50% at the ALJ stage. The following year was generally similar.
In calendar year 2009, there were 34 section 337 complaints filed. Of these 34, 21 were resolved by settlement prior to the issue of an initial determination and 13 were resolved by ALJ decision. Among those cases decided by ALJ decision, 6 were resolved in favor of the complainant and 7 in favor of the respondent yielding a win rate of 46%.
In calendar year 2010, the number of filings increased markedly to 58. Of these, 36 were resolved by settlement prior to the issue of an initial determination and 22 were resolved by ALJ decision. Of these 22 ALJ decisions, 10 were in favor of the complainant and 12 in favor of the respondent yielding a win rate of 45%.
In calendar year 2011, the number of section 337 filings increased further to an all-time high of 68. Of these 68 cases, 49 were resolved by settlement prior to the issue of an initial determination and 19 were resolved by ALJ decision. Of these 19 ALJ decisions, 5 were in favor of the complainant and 14 in favor of the respondent yielding a rather low win rate of 26%.
In calendar year 2012, by contrast, the number of section 337 filings fell to 40. We cannot calculate the win rate for all cases filed in 2012 as those filed in the latter part of the year may still be awaiting ID’s. All of those cases filed in the first half of 2012, however, have either settled or been subject to an initial determination. Thus, we can use those cases from the first half of 2012 as a proxy.
There were 25 section 337 complaints filed in the first half of calendar year 2012. Ten of these 25 resulted in ALJ adjudications. Of these 10, 6 were in favor of the complainant and 4 were in favor of the respondent yielding a win rate of 60%.
Put in graphical format, the win rate over time is seen as follows:
Overlaying the section 337 caseload over win rate yields the following:
The graph suggests an inverse relationship between caseload and complainant success rate but there is no obvious explanation for that relationship. One possibility is that the ITC’s increasing popularity attracted weaker cases. Also, it is possible that the strain of a greatly increased caseload caused the ITC to react in ways that were less hospitable to complainants. In any case, the “great disruption” of 2011 seems to have passed and the Commission’s caseload and win rate have reverted to their historical norms.
 Colleen V. Chien, Patently Protectionist? An Empirical Analysis Of Patent Cases At The International Trade Commission, 50 Wm. & Mary L. Rev. 63 (2008), at 97 n. 174 (overall win rate for the period from January 1995 to June 2007).
 PWC 2012 Patent Litigation Study at 17 (overall win rate for the period from 1995 to 2011).
 Here “settlement” encompasses all cases resolved by means other than contested adjudication (e.g., withdrawal of complaint, default).
 This article will evaluate win rate at the initial determination stage rather than the final determination stage to increase the sample size and to permit an “apples to apples” comparison with cases filed in 2012 (most of which have not yet proceeded to final determination).
 As this is the number of cases filed in the calendar year rather than the ITC’s fiscal year, it differs slightly from statistics on the ITC’s web page.