A Recent Flurry of Section 337 Investigations at the ITC
The end of 2020 saw a significant uptick in new Section 337 Complaints filed at the International Trade Commission (ITC). Five new cases were filed in October, five more in November, and eight in December. One of these complaints was later withdrawn, leaving a total of 17 new cases filed in a three-month period. This is the equivalent of 68 new Complaints on an annualized basis, a rate comparable to previous peak years and well above the level of activity in recent years (new Section 337 investigations, including ancillary proceedings, totaled 52 in FY 2020 and 58 in FY 2019).
As is typical, the vast majority of recent Section 337 Complaints are based on assertions of patent infringement, with most involving electronics or digital technology products. The subjects of these Complaints include Automatic Storage and Retrieval Systems (instituted as 337-TA-1228), Electronic Shavers (337-TA-1230), Active Optical Cables (337-TA-1233), Radio Frequency Identification Products (337-TA-1234), Vehicle Control Systems (337-TA-1235), Cloud-Connected Wood-Pellet Grills (337-TA-1237), UMTS and LTE Cellular Communication Modules (institution pending), Integrated Circuits (institution pending), Electrical Connectors and Cages (institution pending), IP Camera Systems (institution pending), Active Matrix OLED Display Devices (institution pending) and Batteries (institution pending). Two Complaints involve biotechnology, namely Gabapentin Immunoassay Kits and Test Strips (institution pending) and Plant-Derived Recombinant Human Serum Albumins (institution pending). Only one recent patent-based Complaint (Polycrystalline Diamond Compacts, instituted as 337-TA-1236) falls outside these broad product categories.
A few of the recent Complaints involve causes of action other than or in addition to patent infringement, including trademark infringement (Chocolate Milk Powder, instituted as 337-TA-1232), copyright infringement (Furniture Products Finished with Decorative Wood Grain Paper, 337-TA-1229), and false designation of origin (Plant-Derived Recombinant Human Serum Albumins).
It is hard to pinpoint the reasons for this recent increase in activity at the ITC, but one factor may be the ITC’s willingness to conduct remote “virtual” hearings, in contrast to the difficulties inherent in District Court efforts to conduct remote jury trials. The ITC remains committed to expeditious resolution of its investigations, and the forum retains other advantages, including judges experienced in deciding patent cases, nationwide discovery, exclusionary relief and the ability to name multiple respondents in a single Complaint. Parties who can satisfy the ITC’s domestic industry requirement are well-advised to consider pursuing a Section 337 Investigation, either alone or in combination with a district court complaint ultimately seeking damages.
January 12, 2021