©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  the public health and welfare,  competitive conditions in the United States economy,  the production of like or directly competitive articles in the United States, and  United States consumers.”4 These four considerations are often referred to as the “public interest factors.”
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