The counterplan is better than the courts, ITC prevents clogs

The Advantages of the ITC when Compared to U.S. District Courts

There are several advantages to bringing a Section 337 investigation over litigation in a U.S. district court — namely, the remedies available, expediency of the investigation, and jurisdictional benefits.

First, the ITC’s exclusionary power might be the most important advantage of pursuing a Section 337 proceeding. If a complainant succeeds in a Section 337 proceeding, the ITC has two types of remedial orders at its disposal: An exclusion order prohibits the importation of violative articles into the U.S., while a cease-and-desist order prohibits unfair activity associated with violative articles that were imported prior to the effective date of an exclusion order. The threat of an exclusion order is especially important because it cuts the challenged products off at the pass, which is particularly valuable given there can be no guaranty that a complaining patent owner will ultimately receive an injunction in a U.S. district court action.5

There are two types of exclusion orders for successful complainants: a limited exclusion and a general exclusion order. Both orders prohibit the importation of articles that the ITC determines violate Section 337. U.S. Customs and Border Protection enforces both types of orders too. Under a limited exclusion order, the ITC bars the importation of violative articles from the specific respondents named in an underlying Section 337 investigation. Under a general exclusion order, the ITC prohibits the importation of all violative articles, regardless of the origin and even if the importing party was not a party to the underlying Section 337 investigation. Strategic complainants might be able to leverage the extreme threat of an exclusion order into large settlements too.

Second, Section 337 investigations are extremely fast paced — most Section 337 investigations are completed within 12-to-15 months of initiation. Moreover, the ITC does not stay the investigation if parallel proceedings are brought in the U.S. district courts or before the Patent Trial and Appeal Board. Proceedings at the U.S. district courts, in comparison, may take several years.

Third, it is easier to bring Section 337 investigations against infringing articles. Jurisdiction in the ITC is in rem rather than in personam. That means the ITC has jurisdiction over the accused product rather than a proposed respondent. Personal jurisdiction, service of process, and venue are not issues at the ITC. This makes it easier to bring a Section 337 investigation to address multiple foreign or domestic respondents and multiple products.