March 30, 2015 Articles

Domestic Industry: Reconciling Bally/Midway with USITC Practice

The decision to evaluate postcomplaint activities is consistent with Federal Circuit precedent, USITC practice, and public policy

By James Tonthat

Trade secret cases are on the rise in U.S. courts. See David S. Almeling et al., "A Statistical Analysis of Trade Secret Litigation in State Courts," 46 Gonz. L. Rev. 57, 66–68 (2011). And, the Supreme Court decisions reducing the scope of patentable subject matter and the advent of new technologies (such as 3D printing) available to copyists seem likely to accelerate the use of trade secret law to protect valuable intellectual property.

Perhaps less well known is that trade secret cases brought in the U.S. International Trade Commission (USITC or Commission) under section 337 of the Tariff Act are also on the rise. See Katherine Rhoades & Jennifer Turchyn, "Poaching the American Dream: The U.S. International Trade Commission's Instrumental Role in Combating Foreign Theft of American Trade Secrets," 38 337 Reporter, Summer 2014. One likely explanation is a 2011 Federal Circuit decision holding that section 337 could be used to remedy trade secret misappropriation, even if that misappropriation occurred entirely abroad. TianRui Grp. Co. v. USITC, 661 F.3d 1322 (Fed. Cir. 2011). This article goes beyond TianRui to highlight other possible reasons for the increased use of section 337 to protect trade secrets.

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