June 28, 2012 Articles

Review at the U.S. International Trade Commission

A first trip through commission review can be something like an American's first visit to Canada: Everything looks just a little bit different.

By Mark A. Kressel

The U.S. International Trade Commission (ITC) has become a popular forum for patent infringement litigation in recent years, primarily due to its faster proceedings and relative ease of obtaining injunctive relief. The ITC is a federal agency charged with preventing unfair trade practices related to the importation and sale of goods, including infringement of a valid U.S. patent. See 19 U.S.C. § 1337. The ITC is empowered to investigate whether products infringe a valid U.S. patent in an area where the patentee has a “domestic industry” (a requirement that is not the subject of this article), and if so, to exclude their importation to the United States. See 19 U.S.C. § 1337(a)(2). The ITC cannot generally grant monetary relief.

Although ITC investigations are quasi-adjudicative, the ITC is not an Article III court, and it follows its own procedural rules, codified largely at 19 C.F.R. § 201.16 and part 210. An investigation is conducted by an administrative law judge (ALJ), and ALJ determinations are reviewed initially by the six ITC commissioners themselves. For experienced appellate practitioners, a first trip through commission review can be something like an American’s first visit to Canada—everything looks just a little bit different. This article reviews some key differences between federal appeals and commission review to help practitioners navigate ITC procedures.

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