Section 337 is a trade remedy that exists on top of the remedies available under the patent law, and it is not only acceptable but desirable for the ITC to limit exclusion orders that could harm other interests, whether that's life saving medical research or general economic welfare.
Whether or not it is currently allowed under Section 337, the fact remains that imposing a trade remedy in response to purely domestic infringement by U.S. companies is completely unnecessary.
Citing the ITC’s long history of broadly interpreting its own jurisdiction, the ALJ held that “the dictionary definition of a "sale" does not necessarily limit the Commission's jurisdiction,” which “may be extended to parties that do not themselves engage in prohibited acts.”
The trade agency is an attractive venue for trade secret litigation because it has the power to block accused imports even if the alleged misappropriation of the asserted trade secret occurred entirely in another country where the parties were not subject to U.S. law.
As with other cases brought by licensing companies, Touch-Controlled Mobile Devices has nothing to do with preventing unfair import competition or stopping shady foreign infringers.
The ITC is supposed to adjudicate trade disputes, but patent complaints from NPEs are not trade disputes. They are licensing disputes that can and should be resolved in court.
We'll never get to see the Commission's analysis of the public interest factors in Mobile Electronic Devices, which would have provided much-needed guidance on how to apply the test in future cases.
With the solar panel market already shaken by protectionist trade barriers, the ITC has received a high number of public interest comments filed by non-parties concerned about a new Section 337 investigation and the broad harm an exclusion order would cause to the solar industry.
After the ITC called for early disposition of the domestic industry question in Taurine (Inv. 1146), the patent holder withdrew its complaint. The episode shows how the early disposition program is helping to reduce the ITC's disruptive impact on the U.S. patent system by weeding out some duplicative Section 337 cases that have no patent or trade policy rationale.