ITC is better---it has several advantages over district court action

Several perceived advantages contribute to the increased use of the ITC as a patent enforcement forum. The first is jurisdiction. The ITC gains jurisdiction over importers via the "mere act of importation." 24 This makes jurisdiction over foreign companies much easier, and less complex, than in United States district court where venue and personal jurisdiction rules can deny jurisdictional coverage over such defendants.25 The second perceived advantage is the speed of ITC proceedings.26 Fast track 27 adjudication venues have historically attracted patentees. The ITC is required, by

19 U.S.C. § 1337(d) (setting forth exclusion standards); Kumar, supra note 3, at 537-38. 19 U.S.C. § 1337(b)(1); Kumar, supra note 3, at 536. 17 19 U.S.C. § 1337(a)(1); Kumar, supra note 3, at 536. 19 U.S.C. § 1337(b), (c); Kumar, supra note 3, at 536-37 (setting forth ITC procedures for patent actions). 19 Tex. Instruments, Inc. v. U.S. Int'l Trade Comm'n, 851 F.2d 342, 344 (Fed. Cir. 1988); Chien, supra note 2, at 74-75. 20 Hahn & Singer, supra note 7, at 460 (Figure 1). 21 Id. 22 See id. ("A review of the ITC Database of section 337 investigations ... suggests that other important industries are affected by the ITC's role in patent law, including computers, semiconductors, and communications systems."). 23 Id. at 461. 24 19 U.S.C. § 1337(a)(1); Hahn & Singer, supra note 7, at 461; Kumar, supra note 3, at 535. 25 Hahn & Singer, supra note 7, at 461; see also Kumar, supra note 3, at 535 ("The ITC also has nationwide jurisdiction to conduct investigations, including nationwide service of process for subpoena enforcement actions."). 26 Hahn & Singer, supra note 7, at 461. 5 TEXAS INTELLECTUAL PROPERTY LA WJOURNAL

statute, to complete an investigation "at the earliest practicable time after the date of publication of the notice of such investigation." 2 8 Statistics show that "on average a district court case took about twice as long as an ITC case to fully litigate." 29

Third, there is a perception, that the ITC is patent friendly. 30 This perception is based on results, with patentees wining in 65% of cases between 1975 and 1988, compared to 40-45% in district courts. 3 1 Given the exclusive jurisdiction over Section 337 cases, the ALJ's are also very experienced with patent cases, which may also lead to patent friendliness.3 2

Finally, and perhaps most importantly, the ITC has extremely favorable remedies for patentees: exclusion orders barring the importation of infringing products and cease and desist orders barring the sale of imported articles.33 The ITC can issue two types of exclusion orders: the limited exclusion order ("LEO") and the general exclusion order ("GEO"). The LEO is limited to excluding those infringing products imported by respondents and is very similar to an injunction in district court. 34 The GEO, on the other hand, prohibits all importation of infringing products regardless of source." A GEO therefore applies to all importers of the 36 infringing product, regardless of whether they were a party to the litigation.

Given these injunctive remedies are essentially the only remedies the ITC can issue,37 "the ITC is extremely likely to issue injunctive relief following a finding of infringement." This is even true after the Supreme Court's decision in eBay v.

27 See, e.g., Mark A. Lemley, Where to File Your Patent Case, 38 AIPLA Q. J. 401, 403 (2010) ("Patent plaintiffs generally want speed."). 28 19 U.S.C. § 1337(b)(1); Where is the ITC Going After Kyocera?, supra note 12, at 704. 29 Chien, supra note 2, at 101-102. 30 Hahn & Singer, supra note 7, at 490 (finding a bias at the ITC in favor of patent holders). But cf Chien, supra note 2, at 98 (finding that data does not support the hypothesis that the ITC is biased against defendants). 3' Hahn & Singer, supra note 7, at 461-62 ("The perception that patent holders enjoy an advantage at the ITC is reinforced statistically."). 32 Id. at 462-64; David Schwartz, Courting Specialization: An Empirical Study of Claim Construction Comparing Patent Litigation Before Federal District Courts and the International Trade Commission, 50 WM. & MARY L. REV. 1699, 1709 (2009). 19 U.S.C. § 1337(d), (f); Hahn & Singer, supra note 7, at 462. 34 19 U.S.C. § 1337(d)(1); Kumar, supra note 3, at 537-538. 3s 19 U.S.C. § 1337(d)(2); Kumar, supra note 3, at 538. 36 19 U.S.C. § 1337(d)(2); Kumar, supra note 3, at 538. 37 Civil penalties are also available to remedy violations of exclusion and cease and desist orders. See 19 U.S.C. § 1337(f. 38 Hahn & Singer, supra note 7, at 462; see also Chien, supra note 2, at 99 ("[Prevailing patentees are] essentially guaranteed to get [an injunction] in the ITC (79 percent injunction rate vs. 100 percent injunction rate).").6 [ VOL. 20: 12011] Strength of the International Trade Commission as a Patent Venue

MercExchange, which has limited the availability of injunctions in district court patent infringement cases.39 In contrast, as the Federal Circuit recently held, the four-factor equity test for injunctions set forth in eBay does not apply in Section 337 actions. 40 The close linkage between the ITC and Customs increases the efficacy of the exclusion orders, making the remedies available even more attractive. All of these factors are magnified by the extreme value such injunctive relief, or at least the threat of it, has for the patentee in litigation, settlement discussions, and competition.