In its quest to assert jurisdiction over a larger and larger share of private patent disputes, the U.S. International Trade Commission has rendered the domestic industry requirement of Section 337 nearly meaningless. So, it's pretty impressive when a case comes along where the quantity of domestic investment is just so miniscule that the complainant can't even pass the ITC's exceedingly lax standard.
A look at the ITC's docket in 2018 shows how Section 337’s domestic industry requirement regularly fails to fulfill its legislative purpose.
Congress wanted Section 337 to be utilized on behalf of U.S. industries involved in trade disputes, but the ITC often adjudicates patent licensing disputes that have nothing to do with cross-border trade and issues remedies against domestic industries.
The complainant in the Taurine investigation is an independent inventor who has not yet found anyone willing to license his patent. The ITC has granted a request from respondents to conduct early disposition proceedings on whether his unsuccessful licensing activity satisfies the domestic industry requirement.
Allergan is asking the ITC to block imports of a competing wrinkle treatment based on a Korean trade secret dispute between two other companies.
On November 30, the ITC issued a Final Determination in Robotic Vacuum Cleaning Devices (Inv. 1057) upholding the ALJ's finding of violation and issuing exclusion orders and cease and desist orders against all remaining respondents.
Complainant iRobot makes the popular Roomba brand of robot vacuums and holds a number of patents related to that technology. Original respondents included Hoover, iLife, Black & Decker, Bissell, and a number of Chinese manufacturers. Due to a series of settlements, however, Black & Decker, Bissel, and iLife were dropped from the investigation.
In August, the Commission issued an opinion affirming a summary determination that iRobot satisfied the economic prong of the domestic industry test. That opinion, discussed in an earlier post, helped clarify how research and development costs can be used to establish a domestic industry.
Ultimately, iRobot was found to have satisfied the domestic industry test under both 337(a)(3)(B)—"significant employment of labor and capital"—and 337(a)(3)(C)—"substantial investment in . . . exploitation [of the patented technology through] engineering, research and development, or licensing."
Another summary determination in this investigation is currently under appeal at the Federal Circuit. iRobot has challenged one of the ALJ's claim construction decisions that resulted in a summary determination of noninfringment and termination of one of the patents from the investigation. That appeal is still ongoing, as are iRobot's district court lawsuits against non-settling respondents.