March 30, 2015 Articles

Obtaining Exclusion Orders in the USITC and Injunctions in District Courts

Learn about the limits and advantages of obtaining an order or an injunction for infringement of imported products

By Bryan A. Kohm and Lauren E. Whittemore

Selecting the right venue for a patent dispute is an important consideration. In cases where an entity is importing infringing items into the United States, the patent holder may choose between bringing suit in district court or initiating a section 337 investigation before the U.S. International Trade Commission (USITC or Commission). The USITC and district courts have different limits on who can obtain an exclusion order or injunction, respectively, and set different conditions for obtaining them. The key to successfully obtaining effective injunctive relief is knowing the limits and advantages of each venue and choosing the right venue for your situation.

In addition to establishing infringement, a patent holder seeking a permanent injunction in district court must satisfy a four-factor test: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and the defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).

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