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.
Arguments about how to apply the public interest factors in Mobile Electronic Devices (Inv. 1065) aren’t just about iPhones or 5G or national security. They’re also part of a larger debate over the proper role of injunctive relief as a remedy for patent infringement.
When the Commission instituted the investigation in September, it granted Mahindra's request to decide through an early disposition proceeding whether the complaint was barred by a previous agreement with FCA. The determination did not go in Mahindra’s favor.
A look at the ITC’s docket in 2018 shows very clearly that the trade agency’s patent powers are very rarely being used to protect domestic industries from shady foreign pirates. The agency’s broad jurisdiction under Section 337 mostly just enables forum shopping, excessive remedies and abusive litigation—all while undermining the power of constitutional courts.