As we've mentioned many times before on this blog, most ITC patent cases are filed as duplicative supplements to parallel infringement lawsuits in district court. Often, a patent holder will file in both venues on or around the same day. Sometimes, though, an ITC complaint is filed during the course of ongoing district court litigation in order to add pressure toward a settlement.
That's what seems to be going on in Certain Wireless Communication Devices and Related Components Thereof, a new Section 337 complaint that is part of an ongoing litigation campaign. The complainant is Innovation Sciences, a patent licensing company trying to get royalties from Amazon and from device makers that integrate Amazon's Alexa voice assistant.
The respondents named in the complaint have argued that the complainant lacks standing to sue for infringement (due to alleged co-ownership with the named inventor's previous employer) and have asked the Commission to designate the case for early disposition.
The ITC first started using the early disposition process in 2013 in order to "limit unnecessary litigation, saving time and costs for all parties involved." The agency singled out "domestic industry, importation, and standing" as potentially dispositive issues that might be worth expedited consideration. If it agrees to respondents' request in this case, the Commission will order the administrative law judge assigned to the investigation to conduct special hearings and issue an early determination on the question of standing within 100 days of institution.
After respondents submitted their request for early disposition, the complainant then responded with a request that the Commission instead delay institution of the investigation, because the same standing issue is currently the subject of a pending motion to dismiss in the parallel district court case. The ITC granted complainant's request and the case remains as yet uninstituted.
Interestingly, the requested 30-day delay won't actually give the court enough time to decide the standing issue before the ITC decides whether to institute. It would instead, as the complainant noted, merely give the parties time "to complete their briefing of that motion [in court], which may more fully inform the Commission of all the evidence presented by the parties."
The complainant may be hoping that, after seeing the full extent of the parties' arguments on standing in district court, the Commission will feel confident instituting the investigation without mandating any special early procedure.
Whether or not the ITC decides to mandate an early determination, it's hard to see how this Section 337 investigation could qualify as anything other than "unnecessary litigation." The parties are already adjudicating their dispute in a court of law, and Innovation Sciences does not operate a domestic industry that could be harmed by unfairly traded imports or helped by an import ban. Their ITC complaint is just a litigation tactic meant to impose "time and costs" on the respondents.