Perm do both. ITC consultation isn’t mutually exclusive with district court action

This Article fills these voids; it tests the various postulates and describes the real impact of the Kyocera decision. While doing this, the Article also provides real insight into how strong the ITC is in patent law. The Article does this by looking at all ITC utility patent investigations filed after the date of the Kyocera decision until the end of 2010 (eighty-seven investigations) and comparing them to a similar number filed prior to the decision.

9 The EPROM factors are set forth in Certain Erasable Programmable Read-Only Memories, Components Thereof Products Containing Such Memories, and Processes for Making Such Memories, USITC Pub. 2196, Inv. No. 337-TA-276, at 125 (May 1989). 10 Kyocera, 545 F.3d at 1355-56 (citing 19 U.S.C. § 1337(d)). " Id. at 1356 (citing 19 U.S.C. § 1337(d)(2)(A) and (B)). 12 See Symposium, Where is the ITC going after Kyocera?, 25 SANTA CLARA COMP. & HIGH TECH. L.J. 701 (2009). 1 See, e.g., Sidley Austin LLP, General Exclusion Orders in the Wake of Kyocera, INTELLECTUAL PROPERTY: ITC SECTION 337 UPDATE, (Sept. 9, 2009), available at. 3 TEXAS INTELLECTUAL PROPERTY LA WJOURNAL

For both periods before and after Kyocera, the number of named respondents per investigation as well as the raw number of investigations is observed. The subset of investigations that were filed prior to Kyocera, but still pending when Kyocera was issued, were also examined to determine whether respondents were added after Kyocera. Additional information on the grant of GEOs both before and after Kyocera is also collected. This data can test whether Kyocera has changed the number of respondents, the grant of GEOS, or the number of investigations. Data from district court patent infringement actions filed in parallel to the observed ITC cases is collected as a control in an attempt to isolate the impact of Kyocera.

The results of the study run counter to the conventional wisdom on Kyocera. Patentees have not reacted in any of the ways projected after Kyocera. There is no statistical difference between the average number of respondents per ITC case before Kyocera and those observed after. This lack of statistical difference is even observed in the industries most likely to be affected-electronics and computerrelated technologies. Furthermore, no respondents were added in those ITC investigations pending when Kyocera was issued.

Nor has the grant of GEOs increased. The number of ITC investigations continues to rise at a rapid pace. While all of this is going on, the number of defendants in the parallel district court cases has stayed constant; this discounts other legal or economic influences that may have counteracted Kyocera's effect at the ITC and thus explains the lack of change. To date, Kyocera, appears to have not caused the dramatic changes predicted.

These results speak volumes for the attractiveness of the ITC as a patent venue. Even with the effectiveness of the venue significantly diminished by Kyocera, the ITC's use continues to rise. The data suggests that the ITC is here to stay and almost all patent enforcement actions will take place, at least in part, in the ITC. The landscape of patent enforcement has permanently changed, and the ITC is a solid part of it.

This Article reaches these conclusions by first, in Part I, describing the unique features of the ITC that make it a favored venue of patentees. Part II describes the Federal Circuit's decision in Kyocera and the various postulates as to its impact.

Part III describes the study, the specific data obtained, and the results. Part IV analyzes the results, looking at whether the predictions of Kyocera were true and what the data says about the ITC place in patent enforcement. II. ITC's Unique Position in Patent Enforcement The ITC provides a special forum for hearing patent infringement disputes.' 4 "Section 337" (19 U.S.C. § 1337) gives the ITC power to both exclude products

14 19 U.S.C. § 1337 (2006); Kumar, supra note 3, at 534 ("Patent litigation in the ITC differs significantly from litigation in federal court."); Hahn & Singer, supra note 7, at 460-61. 4 [ VOL. 20: 1 2011] Strength of the International Trade Commission as a Patent Venue

that are found to infringe a U.S. patent and issue cease and desist orders to the same.15 A patentholder files a complaint with the ITC, requesting that the ITC investigate the alleged infringement of a U.S. Patent, which harms a domestic industry.16 A Section 337 action then proceeds before an administrative law judge ("AL"), who determines questions of infringement and validity, amongst others. 7 These determinations are ultimately reviewed by the ITC commissioners, the President, and then appealable to the Federal Circuit.'8 A parallel action for patent infringement can be pursued in United States district court. The number of Section 337 actions has grown tremendously over the past twenty years. 20 The average number of section 337 actions was ten per year in the 1990s; this doubled from 2000-2007, when the average jumped to twenty-three a year. 2 ' The increase in use is particularly prevalent in the electronics industries given that most products containing these technologies are manufactured abroad and imported into the United States.22 This puts the ITC in a unique position to provide effective remedies in this area of technology. 23