Squo solves injunctions—ITC

Evan, Partner and the Chair of the International Trade Commission (ITC) Litigation Practice at Fabricant LLP; Gene, patent attorney and President & CEO of IPWatchdog, Inc. "Obtaining Injunctions Under eBay Versus at the International Trade Commission", IPWatchdog, 2-6-2020, https://ipwatchdog.com/2020/02/06/obtaining-injunctions-ebay-versus-international-trade-commission/id=118576/ LJS

In light of eBay, the U.S. International Trade Commission (ITC), which has always played a large role in patent litigation and enforcement strategies because of its statutory authority to issue exclusion orders and cease and desist orders, emerged as an important forum for patent owners. The ITC is an independent, nonpartisan, quasi-judicial federal agency that fulfills a range of trade-related mandates. One such mandate arises under Section 337 of the Tariff Act of 1930, 19 U.S.C. § 1337, which requires the ITC to determine whether there is an unfair act in the importation of products into the United States, and/or subsequent sale of products in the United States. Section 337 defines the infringement of a patent, copyright, registered trademark or mask work to be such an unlawful act.¶ The ITC does not follow the Supreme Court’s precedent in eBay v. MercExchange, which interpreted Section 283 of the Patent Act, 35 U.S.C. § 283, and instead operates under Section 337 of the Tariff Act of 1930. It is important to understand that the ITC is not ignoring the Supreme Court, but rather the statutory charge of the ITC is decidedly different from that of a federal district court and the Supreme Court’s decision is simply not applicable. “The difference between exclusion orders granted under Section 337 and injunctions granted under the Patent Act, 35 U.S.C. § 283, follows ‘the long-standing principle that importation is treated differently than domestic activity.’” Spansion Inc. v. International Trade Commission, 629 F.3d 1331, 1359 (Fed. Cir. 2010). An ITC exclusion order, for all intents and purposes, is effectively a form of injunctive relief.