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Examining the Evolving Role the Public Interest Plays at the ITC

P. Andrew Riley

©2013. Published in Landslide, Vol. 6, No. 1, September/October 2013, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Taking advantage of rule changes effective November 18, 2011, nonparty Google Inc. submitted a statement in U.S. International Trade Commission (ITC) Investigation No. 817 challenging the patent holder’s ability to meet market demand for the product it sought to exclude and the ITC’s ability to issue an exclusion order1—as effective as an injunction from a U.S. district court—without considering the factors required by the Supreme Court in eBay Inc. v. MercExchange LLC.2 Empowered by 19 U.S.C. § 1337 (§ 337), the ITC investigates unfair trade practices involving patents and other intellectual property. Subsections 337(d) and (f) require that the ITC examine the “public interest” before issuing a remedy in an investigation.3 Generally, it is in the public’s best interest for the government to exclude goods that infringe U.S. patents from importation into the United States. Under subsections (d) and (f), however, the ITC also must weigh a proposed exclusion order against the effect it would have “upon [1] the public health and welfare, [2] competitive conditions in the United States economy, [3] the production of like or directly competitive articles in the United States, and [4] United States consumers.”4 These four considerations are often referred to as the “public interest factors.”

Google asserted in its submission that “[a]n exclusion order against the accused products when no other party is able to meet consumer demand or offer acceptable substitutes could severely harm the wireless communications industries, to the detriment of consumers, competitive conditions in the United States, and the public interest.”5 In addition, Google argued, “[s]ome non-practicing entities and patent speculators have turned to the ITC in an effort to maintain that leverage and make an end-run around the Supreme Court decision in eBay.”6 ITC Investigation No. 817 settled before a decision issued, but Google’s submission is an example of how companies can provide input to the ITC regarding important public interest issues, especially when an exclusion order or other remedy may significantly affect international trade or American consumers.

The ITC made these rule changes “to aid the Commission in identifying investigations that require further development of public interest issues in the record, and to identify and develop information regarding the public interest at each stage of the investigation.”7 Under the new rules, the ITC will receive comments on the public interest at the beginning of an investigation from the parties and from others.8 In addition, the new rules allow the ITC to delegate fact-finding on the public interest to the presiding administrative law judge (ALJ) based on these public interest submissions.9

Historically, public interest concerns have had little impact on whether the ITC issued an exclusion order. Since 1974, the ITC has declined to issue an exclusion order for a violation of § 337 due to public interest concerns in only three investigations.10 The remedies ordered by the ITC in two relatively recent investigations, however, illustrate how seriously the ITC evaluates the public interest factors and how third parties can influence the ultimate remedy issued by the ITC. This article examines some of the recent changes to ITC law and practice following the November 2011 rule changes, and the evolving role of the public interest at the ITC.

Current ITC Rules for Statements on Public Interest

Although ITC § 337 investigations resemble patent litigation before U.S. district courts, the ITC cannot award monetary compensation. Instead, it can issue exclusion orders that prohibit the excluded goods from entering the United States if the ITC finds a violation of § 337. The ITC will find a violation of § 337 if the respondent infringes a valid, enforceable patent, or commits some other unfair act,11 and the complainant satisfies the domestic industry requirement.12 Subsections (d) and (f) require the ITC to weigh a proposed exclusion order against the four public interest factors before issuing a final decision. The ITC traditionally solicited public comments on the public interest factors at the end of an investigation before making a final determination.

The rules that went into effect on November 18, 2011, require the complainant—the party seeking the investigation—to submit a statement on the public interest when filing a complaint.13 The statement should address “how issuance of the requested relief . . . in this investigation could affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.”14 The complainant’s statement must also:

  1. Explain how the articles potentially subject to the requested remedial orders are used in the United States;
  2. Identify any public health, safety, or welfare concerns relating to the requested remedial orders;
  3. Identify like or directly competitive articles that complainant, its licensees, or third parties make which could replace the subject articles if they were to be excluded;
  4. Indicate whether the complainant, its licensees, and/or third parties have the capacity to replace the volume of articles subject to the requested remedial orders in a commercially reasonable time in the United States; and
  5. State how the requested remedial orders would impact consumers.15

The new rules also allow for the public and the proposed respondents to submit comments and respond to any issues presented in a recently filed complaint or in the complainant’s statement on the public interest.16 ITC rule 210.8(c) limits submissions from any party to five pages, which are due eight days after publication of the receipt of the complaint in the Federal Register.17 Using these submissions, the ITC determines whether to delegate fact-finding on the public interest to the presiding ALJ under new ITC rule 210.10(b).18

Evolving Role of Public Interest at ITC

Prior to the 2011 rule amendments, the ITC received comments on the public interest factors after an ALJ’s decision but before issuing a final determination in an investigation. This usually took the form of written submissions on the public interest factors from the parties to the investigation and, in a minority of investigations, interested third parties and government agencies.19

Historic Role of Public Interest

To date, the ITC has found in only three investigations that other public interest concerns outweighed the public’s interest in excluding infringing goods to protect U.S. patent rights. First, in 1979 in Certain Automatic Crankpin Grinders (Investigation No. 60), the ITC found that other public interest concerns outweighed the public interest in enforcing the patentee’s right to a monopoly. Specifically, the ITC found that the domestic manufacturers could not satisfy the demand for crankpin grinders, which were critical in the manufacture of fuel-efficient cars.20 Similarly, in 1980 in Certain Inclined-Field Acceleration Tubes (Investigation No. 67), the ITC declined to issue an exclusion order despite finding that the accused acceleration tubes, used to study nuclear structures, infringed the asserted patent.21 There, the ITC held that the public interest weighed in favor of keeping the respondent’s better-performing and less-expensive tubes on the market to the detriment of the patentee’s rights.22

Most recently, in 1984 in Certain Fluidized Supporting Apparatus (Investigation Nos. 182/188), the ITC denied a motion for temporary relief because it found that the public interest in the availability of special hospital beds for burn victims outweighed the harm that might be caused by any infringement.23 Not only did the special beds “provide benefits unavailable from any other device or method of treatment,” the complainant could not meet the demand for these important beds.24

According to the Federal Circuit, the common thread throughout these three ITC investigations is an “inadequate supply within the United States—by both the patentee and domestic licensees—[such] that an exclusion order would deprive the public of products necessary for some important health or welfare need: energy efficient automobiles, basic scientific research, or hospital equipment.”25

More Nuanced Approach toward Public Interest in Recent Investigations

To the dismay of many respondents found to infringe, the ITC has not found a combination of important public health or welfare needs and the patentee’s inability to meet market demand sufficient to outweigh the patentee’s patent rights since its 1984 decision in Investigation Nos. 182/188, concerning hospital beds for burn victims. Recent ITC decisions, however, including the two discussed below, show that the ITC will modify its remedies in response to public interest concerns raised by parties and nonparties under certain circumstances. Moreover, the 2011 rule changes provide additional paths for parties and nonparties to voice their public interest concerns.

In Certain Baseband Processor Chips (Investigation No. 543), an investigation initiated by complainant Broadcom Corp., the ITC found that respondent Qualcomm Inc. infringed one of Broadcom’s patents and issued a limited exclusion order and a cease and desist order in 2007.26 This investigation garnered an unusual amount of third-party attention. Verizon Wireless, LG Electronics Mobilecomm U.S.A. Inc., Kyocera Wireless Corp., Motorola Inc., Sprint Nextel Corp., and Samsung Electronics Co. (collectively, the intervenors) all moved to intervene in the investigation, which the ALJ granted only on the issues of remedy and bonding.27 The ALJ then bifurcated the investigation, separating the remedy briefing and hearing from the usual evidentiary hearing.28 Finally, the ITC held a public hearing on the issues of remedy and the public interest after receiving a request from respondent Qualcomm for a hearing before issuing its final determination.29

After reviewing the many briefs and two days of public testimony,30 the ITC exempted from its exclusion order “all models of devices currently imported in the United States for sale to the general public on or before June 7, 2007.”31 The exemption would allow “public safety personnel . . . to continue accessing the existing features of the EV-DO and WCDMA networks,” and to “rapidly transmit and receive pictures, video, warrants, and other documents, and access web pages.”32 The ITC also found this exemption would lessen the impact on consumers and competitive conditions in the U.S. economy.33

The arguments and testimony submitted by a number of the third parties persuaded the ITC to create this exemption to its proposed remedy. The intervenors and others argued that public safety would be harmed because the proposed remedy would adversely impact public safety officials who relied on existing infringing handsets and the EV-DO infrastructure.34 In response to these arguments, the ITC exempted existing models so that sales to public safety officials and others could continue. This investigation provides an excellent example of how third parties can participate and influence the remedy issued in an ITC investigation.

In another investigation in 2011, Certain Personal Data & Mobile Communications Devices & Related Software (Investigation No. 710), the ITC delayed implementation of an exclusion order and included an exemption in response to public interest concerns raised by a third party. In that investigation, the ITC found respondents High Tech Computer Corp., HTC America Inc., and Exedea Inc. (collectively, HTC) infringed one of four patents related to smartphones asserted by complainant Apple Inc.35 According to the ITC, the appropriate remedy included a limited exclusion order blocking imports of certain HTC smartphones containing certain versions of the Android operating system.36 That limited exclusion order, however, issued with two caveats created in response to public interest concerns raised by, among others, third party T-Mobile USA.37

The ITC delayed implementation of the exclusion order by four months in an attempt to reduce harm to competitive conditions in the U.S. economy. This delay would help T-Mobile, which relied heavily on HTC smartphones, to transition to other devices with a different operating system not subject to the exclusion order.38 In addition, the ITC provided an almost two-year exemption allowing HTC to import refurbished smartphones as replacements because some U.S. consumers, who would expect to have their smartphone replaced under warranty with the same device, would be harmed by a total ban on imports.39 The ITC later rescinded this limited exclusion order when the parties reached a settlement.40

Third-Party Public Interest Submissions Will Likely Not Result in Excessive, Unwanted Discovery

Third parties may now ask: Will submitting a third-party statement on the public interest subject the third party to unwanted and costly discovery? So far, the answer appears to be “unlikely,” if other ALJs follow two recent decisions by ALJ Theodore R. Essex quashing subpoena topics that sought the bases of third-party public interest statements in ITC Investigation No. 817.

In that investigation, ChriMar Systems Inc., d/b/a CMS Technologies, filed a complaint at the ITC on November 1, 2011.41 Two companies not named in the complaint, Google and Broadcom, submitted separate third-party public interest statements under the new rules.

In its submission, Google addressed not only issues specific to the proposed investigation—namely, that the complainant could not meet the demand for the products it sought to exclude42—but also larger policy issues, such as whether the ITC should examine the factors required by the Supreme Court’s decision in eBay before issuing an exclusion order.43 The ITC instituted the investigation and delegated fact-finding on the public interest to the ALJ.44 ChriMar served a subpoena on Google during the discovery phase of the investigation, seeking documents and testimony about Google’s public interest submission.45 Google filed objections and did not produce any documents to respond to the subpoena. ChriMar moved to strike Google’s statement and preclude Google from participating in the investigation, or alternatively, sought judicial enforcement of its subpoena to Google.46

ChriMar argued in its motion to strike Google’s statement that it was entitled to discovery from Google because Google “interjected” itself into the investigation with its public interest statement.47 The ALJ disagreed. Specifically, the ALJ found no prejudice to ChriMar because Google’s submission was “based entirely on public facts and raises relatively straight forward arguments regarding eBay and the availability of alternative suppliers.”48 The ALJ also found that Google did not “interject” itself because “Google responded to an invitation by the Commission to provide commentary on this investigation and its impact on the public interest.”49 In addition, the ALJ found ChriMar’s subpoena requests overly broad and irrelevant, and denied the motion in its entirety.50

Like Google, Broadcom submitted a third-party statement on the public interest to respond to the ITC’s notice.51 And, like Google, Broadcom received a subpoena from ChriMar requesting documents and deposition testimony about Broadcom’s statement and components that Broadcom supplied to the respondents in the investigation.52 Broadcom filed a motion to quash and/or limit the subpoena, which ALJ Essex granted in part and denied in part.53 Referring to his order regarding the Google subpoena, ALJ Essex quashed ChriMar’s requests related to Broadcom’s public interest statement.54 The ALJ, however, did not quash the remainder of ChriMar’s requests—even though they appeared “vague, overly broad, and unduly burdensome”—because Broadcom was a component supplier, and the requests sought information related to the Broadcom chips used by the respondents.55 For these remaining subpoena topics, ALJ Essex ordered ChriMar and Broadcom to meet and confer to find a more reasonable scope.56

These two orders by ALJ Essex provide useful guidance for a third party considering whether to submit a statement on the public interest. If the other ALJs at the ITC follow the rationale offered by ALJ Essex, a statement discussing public facts and argument about the public interest factors will likely not be subject to unwanted discovery on those issues.

How Persuasive Do the ALJs Find Public Interest Submissions?

Because Investigation No. 817 terminated before a decision on the merits, we do not know what impact the third-party public interest statements submitted by Google and Broadcom would have had on the ultimate remedy if the ITC found a violation of § 337. These submissions, however, may have influenced the ITC’s decision to delegate fact-finding on the public interest to the ALJ under the new rules. Rule 210.10(b) now states that the ITC “may order the administrative law judge to take evidence and to issue a recommended determination on the public interest based generally on the submissions of the parties and the public.”57 In only a small minority of investigations, however, does the ITC delegate this responsibility.

In 2011 and 2012, the ITC instituted 109 investigations and delegated fact-finding on the public interest to the presiding ALJ in 15 investigations,58 roughly 14 percent of the total. In the first quarter of 2013, the ITC delegated fact-finding in four of the 10 investigations instituted.59 Only a few of these investigations, however, have proceeded far enough for the presiding ALJ to issue a recommended determination on the public interest.60 One recent example, a decision issued by ALJ David P. Shaw in Investigation No. 781, provides some insight into how the ALJs view public interest submissions and what evidence they may find persuasive.

In that investigation, instituted on a complaint filed by X2Y Attenuators, LLC against Intel Corporation, Apple Inc., Hewlett-Packard Company (HP), and other Intel entities (collectively, the respondents), the ITC delegated fact-finding on the public interest to ALJ Shaw.61 X2Y alleged that certain Intel chips incorporated into Apple and HP products infringed X2Y’s three asserted patents relating to microprocessors.62 ALJ Shaw issued an initial decision in December 2012 and, on review, the ITC modified some of his claim constructions but reached the same conclusion. Both concluded that the respondents did not infringe the asserted patents, so the ITC terminated the investigation.63

As directed by the ITC, ALJ Shaw addressed the public interest factors in his decision and found that the “unique circumstances of this investigation” warranted “tailoring” the remedy as the ITC had previously done.64 To reach this conclusion, ALJ Shaw evaluated evidence and testimony on the public interest submitted by the parties during the evidentiary hearing.65 He found persuasive arguments made by the respondents and the ITC’s Office of Unfair Import Investigations that a limited exclusion order would “create shortages” in the United States of Intel processors in addition to shortages of Apple and HP products that utilize Intel processors.66 The ALJ found the evidence submitted during the hearing supported the conclusion that “there [is] a lack of substitutes for the accused Intel microprocessors[;] there are also no adequate substitutes for the accused HP servers, HP computers, and Apple computers.”67 In addition, ALJ Shaw found “the evidence shows that . . . a design-around would be time-consuming and costly, not only for Intel, but also for original equipment manufacturers (“OEM”) such as Apple and HP that incorporate Intel microprocessors into their products.”68

Turning to the first public interest factor—the public health and welfare—ALJ Shaw found that a limited exclusion order would result in job losses in the United States and “would severely harm the U.S. manufacturing base,”69 resulting in an “adverse effect on the U.S. economy.”70 For the second public interest factor—competitive conditions in the U.S. economy—the ALJ found the “record evidence suggests that the entry of an exclusion order in this investigation would reduce competition in certain product markets.”71 For the third public interest factor—U.S. production of like or directly competitive articles—ALJ Shaw found that other companies’ movement of U.S. manufacturing overseas “offset” X2Y’s evidence that competitors of Intel would benefit from an exclusion order.72 Addressing the final public interest factor, the ALJ found a limited exclusion order would result in shortages and price increases in computers, workstations, and servers, thereby harming U.S. consumers.73

After weighing the benefit of protecting X2Y’s patent rights against the harm that such an order may cause, the ALJ found “it is not clear that the Commission should necessarily issue an exclusion order barring from importation all Intel microprocessors, as well as any Apple and HP products, if they are found to infringe the asserted patents.”74 ALJ Shaw noted that the exclusion order could be delayed by nine months to allow Apple and HP to modify their manufacturing to include noninfringing processors.75

This decision provides insights into what evidence ALJ Shaw found persuasive on the public interest factors, including expected job losses, a lack of comparable substitutes, and harm to U.S. manufacturing. In addition, it shows a willingness by the ALJ to weigh public interest concerns against the patent holder’s rights and to recommend a modified exclusion order to address those concerns.

Conclusion

Google’s and Broadcom’s public interest statements in Investigation No. 817, and ALJ Shaw’s decision regarding the public interest in Investigation No. 781, illustrate that the new ITC rules are having an impact on ITC investigations. These new rules present a unique advocacy opportunity for parties and nonparties to an ITC investigation to influence the scope of the investigation and to argue for a more narrowly tailored remedy if the ITC finds a violation of § 337.

Endnotes

1. Certain Commc’n Equip., Components Thereof & Prods. Containing the Same, Including Power over Ethernet Tels., Switches, Wireless Access Points, Routers & Other Devices Used in WLANs & Cameras, Inv. No. 337-TA-817, Submission of Non-Party Google Inc. in Response to the Commission’s Request for Submissions on the Public Interest, Docket No. 2853 at 3–5 (Nov. 15, 2011) (EDIS No. 464275) [hereinafter Google’s Submission in USITC Investigation No. 817], available at www.itcblog.com/wp-content/uploads/2012/06/Googles-Public-Interest-Statement.pdf.

2. 547 U.S. 388 (2006). A unanimous Supreme Court held in eBay that an injunction would not automatically follow a finding of patent infringement; rather, the trial court must weigh four factors before issuing an injunction. Id. at 391–92; but see Spansion, Inc. v. USITC, 629 F.3d 1331 (Fed. Cir. 2010) (holding that the ITC does not have to apply the factors established in eBay before issuing a remedy).

3. The “public interest” requirement was added by Congress in a 1974 amendment. Trade Act of 1974, Pub. L. No. 93-618, 88 Stat. 1978 (codified as amended at 19 U.S.C. § 2191); see also Certain Cigarettes & Packaging Thereof, Inv. No. 337-TA-424, USITC Pub. 3366, Comm’n Op. at 11 (Nov. 2000) (“[T]he Commission is required to consider the effect of such relief on the public health and welfare, competitive conditions in the U.S. economy, the production of like or directly competitive articles in the United States, and U.S. consumers.”).

4. 19 U.S.C. § 1337(d)(1).

5. Google’s Submission in USITC Investigation No. 817, supra note 1, at 3.

6. Id. at 4.

7. Rules of Adjudication and Enforcement, 76 Fed. Reg. 64,803 (Oct. 19, 2011).

8. 19 C.F.R. § 210.8(b).

9. Id. §§ 210.10(b), .50(b)(1).

10. See Certain Fluidized Supporting Apparatus & Components Thereof, Inv. Nos. 337-TA-182/188, USITC Pub. 1667, Comm’n Op. at 1–2 (Oct. 1984) [hereinafter USITC Investigation Nos. 182/188]; Certain Inclined-Field Acceleration Tubes & Components Thereof, Inv. No. 337-TA-67, USITC Pub. 1119, Comm’n Op. at 21–22 (Dec. 1980) [hereinafter USITC Investigation No. 67]; Certain Automatic Crankpin Grinders, Inv. No. 337-TA-60, USITC Pub. 1022, Comm’n Op. at 20–21 (Dec. 1979) [hereinafter USITC Investigation No. 60].

11. Section 337 investigations can involve patent, trademark, trade dress, and copyright infringement under subsection (a)(1)(B) as well as other unfair methods of competition such as trade secret misappropriation. E.g., TianRui Grp. Co. v. USITC, 661 F.3d 1322, 1335 (Fed. Cir. 2011) (affirming the USITC’s decision finding a violation of § 337 centered on trade secret misappropriation).

12. 19 U.S.C. § 1337.

13. 19 C.F.R. § 210.8(b).

14. Id.

15. Id.

16. See id. § 210.8(c).

17. Id.

18. Id. § 210.10(b).

19. Although infrequent, the ITC can also hold a public hearing and receive testimony on the public interest factors. E.g., Certain Baseband Processor Chips & Chipsets, Transmitter & Receiver (Radio) Chips, Power Control Chips & Prods. Containing Same, Including Cellular Tel. Handsets, Inv. No. 337-TA-543, USITC Pub. 4258, Comm’n Op. at 1 (June 2007) [hereinafter USITC Investigation No. 543], rev’d in part, Kyocera Wireless Corp. v. USITC, 545 F.3d 1340 (Fed. Cir. 2008) (reversing the ITC’s limited exclusion order against downstream products as too broad, but not disturbing the ITC’s public interest conclusions).

20. USITC Investigation No. 60, supra note 10, at 6, 20–21 (“A crankpin is a critical component of every internal combustion engine.”).

21. USITC Investigation No. 67, supra note 10, at 21–22.

22. Id. at 27 (“The users consider [respondent’s] tube to be greatly superior in performance to the High Voltage tube—not to mention substantially less expensive—and therefore indispensable to their research efforts.”).

23. USITC Investigation Nos. 182/188, supra note 10, at 1–2.

24. Id. at 23–24.

25. Spansion v. USITC, 629 F.3d 1331, 1360 (Fed. Cir. 2010).

26. USITC Investigation No. 543, supra note 19, at 1.

27. Id. at 2–3.

28. Id. at 138–39.

29. Id. at 4.

30. The ITC received testimony and/or briefing on the remedy and the public interest from, among others, the complainant Broadcom, the respondent Qualcomm, the intervenors, the ITC’s Office of Unfair Import Investigations, the Federal Communications Commission (FCC), and the Federal Emergency Management Agency (FEMA). See id. at 139–48.

31. Id. at 150–51.

32. Id.

33. Id. at 151.

34. Id. at 142; see also id. at 146 (comments from FEMA).

35. Certain Personal Data & Mobile Commc’ns Devices & Related Software, Inv. No. 337-TA-710, USITC Pub. 4331, Comm’n Op. at 34–35 (Dec. 29, 2011) [hereinafter USITC Investigation No. 710].

36. Id. at 67.

37. Id., Third-Party T-Mobile USA, Inc.’s Statement regarding the Public Interest (Oct. 6, 2011) (EDIS No. 460918). The ITC also received third-party submissions from the Association for Competitive Technology (EDIS No. 462427) and Google Inc. (EDIS No. 460904).

38. USITC Investigation No. 710, supra note 35, at 78–83.

39. Id. at 71–73.

40. Id., Notice of Commission Decision Rescinding the Exclusion Order (Jan. 14, 2013).

41. Certain Communications Equipment, Components Thereof, and Products Containing the Same, Including Power over Ethernet Telephones, Switches, Wireless Access Points, Routers and Other Devices Used in WLANs and Cameras; Receipt of Complaint; Solicitation of Comments Relating to the Public Interest, 76 Fed. Reg. 68,785 (Nov. 7, 2011).

42. Google’s Submission in USITC Investigation No. 817, supra note 1, at 1–3.

43. Id. at 4–5; but see Spansion, Inc. v. USITC, 629 F.3d 1331 (Fed. Cir. 2010) (holding that the USITC does not have to apply the factors established in eBay before issuing a remedy).

44. Certain Communication Equipment, Components Thereof, and Products Containing the Same, Including Power over Ethernet Telephones, Switches, Wireless Access Points, Routers and Other Devices Used in LANs, and Cameras; Institution of Investigation, 76 Fed. Reg. 76,436 (Dec. 7, 2011).

45. USITC Investigation No. 817, supra note 1, Order 12 at 3 (May 29, 2012) (“Denying Complainant’s Motion to Strike Non-Party Google Inc.’s Submission on Pubic Interest and Preclude Google from Participating in the Investigation, or in the Alternative, to Certify to the Commission a Request for Judicial Enforcement of the Subpoena to Google, Inc.”).

46. Id. at 1.

47. Id.

48. Id. at 5.

49. Id. at 6.

50. Id. at 5–8.

51. Broadcom and NVIDIA jointly submitted this statement on the public interest. USITC Investigation No. 817, supra note 1, Order 13 at 2 (May 29, 2012) (“Granting-in-Part and Denying-in-Part Non-Party Broadcom Corporation’s Motion to Quash and/or Limit Complainant’s Subpoena Duces Tecum and Ad Testificandum”).

52. Id. at 8–9.

53. Id.

54. Id. at 6.

55. Id. at 6–7.

56. Id. at 7.

57. 19 C.F.R. § 210.10(b).

58. See USITC Investigation Nos. 337-TA-756 (76 Fed. Reg. 4935 (Jan. 27, 2011)); 337-TA-766 (76 Fed. Reg. 16,445 (Mar. 23, 2011)); 337-TA-768 (76 Fed. Reg. 17,444 (Mar. 29, 2011)); 337-TA-779 (76 Fed. Reg. 36,576 (June 22, 2011)); 337-TA-781 (76 Fed. Reg. 39,895 (July 7, 2011)); 337-TA-803 (76 Fed. Reg. 55,417 (Sept. 7, 2011)); 337-TA-811 (76 Fed. Reg. 69,284 (Nov. 8, 2011)); 337-TA-814 (76 Fed. Reg. 72,442 (Nov. 23, 2011)); 337-TA-817 (76 Fed. Reg. 76,436 (Dec. 7, 2011)); 337-TA-836 (77 Fed. Reg. 21,584 (Apr. 10, 2012)); 337-TA-846 (77 Fed. Reg. 33,489 (June 6, 2012)); 337-TA-853 (77 Fed. Reg. 51,572 (Aug. 24, 2012)); 337-TA-854 (77 Fed. Reg. 58,579 (Sept. 21, 2012)); 337-TA-855 (77 Fed. Reg. 58,578 (Sept. 21, 2012)); 337-TA-860 (77 Fed. Reg. 65,713 (Oct. 30, 2012)).

59. See USITC Investigation Nos. 337-TA-862 (78 Fed. Reg. 1247 (Jan. 8, 2013)); 337-TA-866 (78 Fed. Reg. 6838 (Jan. 31, 2013)); 337-TA-871 (78 Fed. Reg. 13,895 (Mar. 1, 2013)); 337-TA-873 (78 Fed. Reg. 16,533 (Mar. 15, 2013)).

60. See Certain Microprocessors, Components Thereof & Products Containing Same, Inv. No. 337-TA-781, Initial Determination (Dec. 14, 2012) [hereinafter USITC Investigation No. 781], available at www.itcblog.com/20130125/alj-shaw-issues-public- version-of-initial-determination-in-certain-microprocessors-337-ta-781; Certain Reduced Ignition Proclivity Cigarette Paper Wrappers & Prods. Containing Same, Inv. No. 337-TA-756, Initial Determination (Feb. 1, 2012).

61. In the Matter of Certain Microprocessors, Components Thereof, and Products Containing Same; Notice of Institution of Investigation; Institution of Investigation Pursuant to 19 U.S.C. § 1337, 76 Fed. Reg. 39,895 (July 7, 2011).

62. USITC Investigation No. 781, supra note 60, at 1–4.

63. Certain Microprocessors, Components Thereof, and Products Containing Same; Termination of Investigation with a Finding of No Violation, 78 Fed. Reg. 12,354 (Feb. 22, 2013).

64. USITC Investigation No. 781, supra note 60, at 373–74.

65. No third party sought to intervene in Investigation No. 781 for the purpose of offering submissions on the public interest as the intervenors did in Investigation No. 543.

66. USITC Investigation No. 781, supra note 60, at 358–61.

67. Id. at 362.

68. Id. at 363–65.

69. Id. at 366–67.

70. Id. at 369.

71. Id. at 369–70.

72. Id. at 370–71.

73. Id. at 371–72.

74. Id. at 373.

75. See id. at 373.

P. Andrew Riley is a partner in the Washington, D.C., office of Finnegan, Henderson, Farabow, Garrett & Dunner, LLP. He focuses his practice on intellectual property litigation and counseling, with an emphasis on patent litigation before U.S. district courts and the U.S. International Trade Commission.