ITC CP - Michigan 2024 HHRS

CP---ITC---HHIRS
Notes
Process counterplan, it’s pretty self explanatory --- does the plan using the US international trade commission to enforce instead of the USPTO/ USFG litigation. Solves because the ITC is much more efficient and faster than this litigation. There is definitely a competitiveness debate to be had insofar as the mutual exclusivity of the CP---evenly debated, it’s probably neg but could really go either way.
Net benefits are pretty good, you can probably slap any NB from WTO/ Treaties into the counterplan and it would work reasonably well.
What is the USITC?
International trade organization which aligns foreign policy, “fixes” the harmonized tariff schedule and other trade-y things.
TLDR---International trade agency does plan instead of USFG
Sid Kohli, Henry Su, John Masterson, Beatrix Hopkins, Artem Raievskyi, Nayana Nag, and everyone else who contributed to the file
1NC
1NC---OFF
The United States federal government should designate the International Trade Commission the exclusive authority to enforce [plan].
The counterplan solves, it has the ITC become a specialized IPR division that which reduces costs and length of IP disputes, aligns trade and foreign policy, and resolve public discontent
Linda Sun 19, Northwestern University Pritzker School of Law, J.D., 2020, “The ITC Is Here To Stay: A Defense of the International Trade Commission’s Role in Patent Law,” 17 NW. J. Tech. & Intell. Prop. 137//susu
A. The ITC as a Patent Specialized Court
The ITC provides a unique patent-specialized trial court perspective on patent law that is percolated to the Federal Circuit and Supreme Court.
In a highly technical area of law such as patent law, an understanding of the science and technology behind the patents at issue can be critical to making a fair and correct ruling.106 Specialized intellectual property courts may be “better equipped to keep pace with and adapt to dynamic developments in [intellectual property] law,” and can develop rules that are tailored to intellectual property disputes.107 Specialized judges would become more proficient in patent law, which would “likely reduce the cost and length” of trials.108 For these reasons, many industrial nations have specialized patent trial courts or panels.109 For example, Japan has specialized divisions of district and appeals courts that handle intellectual property matters.110 Greece staffs their Specialized Intellectual Property Right Divisions with judges with expertise in intellectual property rights.111 A 2012 study on specialized intellectual property courts conducted by the International Intellectual Property Institute and the USPTO found that specialized intellectual property courts “often make quicker and more effective decisions.”112
The ITC can be viewed as a patent-specialized trial court because of its similarities to specialized trial courts: almost all of the ITC’s cases are patent infringement violations.113 Although the administrative law judges of the ITC have a variety of backgrounds, they “acquire extensive experience in patent law and are widely regarded as experts.”114 While the PTAB is also patent-specialized, it is more limited than the ITC in the type of issues it can hear.115 The presence of the ITC provides the benefits of a patentspecialized court within the larger framework of percolation.
B. The ITC Provides a Trade and Policy Perspective
With its basis in international trade regulation, the ITC puts a policy and trade lens on patent law. By being a part of the large patent law landscape, the ITC allows views of patent law influenced by public policy and trade to percolate. This broadens how decisions are made and decreases the chance of a “tunnel vision” view of patent law.116
Congress specifically instructed the ITC to consider the public policy of promoting free competition, which “suggests that Congress wanted the ITC to use a nuanced approach in determining patent validity and enforceability, with a focus on protecting U.S. businesses from the negative side-effects of free trade.”117 The ITC has unique trade expertise; the agency investigates trade issues from dumping to tariffs and possesses broad knowledge about trade practices that harm U.S. companies.118 This broad base of information is utilized by the ITC in its determinations of patent validity and remedies. In fact, the law requires the ITC to utilize this information. For example, before implementing an exclusion order, the ITC is required to consider whether the exclusion order is “inconsistent with the public interest, with input from other regulatory agencies.”119 The ITC is also able to order public hearings to determine whether such exclusion orders would harm the public.120 In contrast, district courts are not equipped or required to consider issues of trade and foreign policy.121
A unique element of Section 337 proceedings is the participation of an investigative attorney (or “staff attorney”) from the Office of Unfair Import Investigations.122 Each proceeding has a staff attorney who “participates in discovery, motions, and trial, creating a different case dynamic than that experienced in district court.”123 The staff attorney is a full party to the investigation and “functions as an independent litigant representing the public interest.”124 The addition of a neutral party who advocates for free trade adds a unique perspective to ITC proceedings.
In addition, the President has the authority to veto injunctions issued under Section 337 proceedings based on policy reasons.125 These policy reasons include: “(1) public health and welfare; (2) competitive conditions in the U.S. economy; (3) production of competitive articles in the United States; (4) U.S. consumers; and (5) U.S. foreign relations, economic and political.”126 The President’s decision cannot be appealed to the Federal Circuit.127 The fact that the President can veto ITC decisions makes the ITC a better-positioned forum to make policy decisions as compared to district courts, which are not under the executive branch’s purview.128 Therefore, the ITC is able to incorporate more policy considerations into its patent cases without the same decision costs of district courts. At times, a Presidential veto results in a narrowed or altered remedy from the ITC.129 Incorporating the President’s point of view adds another dimension to ITC patent decisions that sets them apart from district court decisions. Thus, the ITC adds diversity and important public interest considerations to the body of patent law doctrine that informs the Federal Circuit and Supreme Court.
C. Flexibility of the ITC
The ITC and its processes have been substantively amended since the ITC’s inception. With each change, the ITC has become better suited to address patent issues. The flexibility of the ITC contributes to its important presence in the patent law landscape.
Prior to the 1980’s, a patent holder had to show both infringement and economic injury to a domestic industry in order to qualify for a Section 337 investigation.130 This meant universities and small companies were excluded from ITC proceedings because they did not engage in manufacturing.131 In response, Congress passed the 1988 Omnibus Trade and Competitiveness Act that relaxed the domestic industry and injury requirements.132 Section 337 was amended to no longer require injury and to consider licensing as a form of industry.133
In response to a General Agreement on Tariffs and Trade (GATT) ruling that found Section 337 to violate international law, Congress changed Section 337 to loosen time limits, allow counterclaims, allow stays of district court litigation, and increase requirements for general exclusion orders in 1994.134 This allowed the ITC to provide general exclusion orders when warranted while easing GATT concerns over the differences between district court and ITC remedies.135
The eBay injunction standard addressed the problem of patent assertion entity or patent troll claims in district courts.136 However, applying eBay to the ITC would make the ITC redundant and leave it unable to appropriately address unfair trade practices.137 Instead, the ITC used a “more trade forum-appropriate lever.”138 In 2014, the ITC tightened its domestic industry standards, which reduced the number of patent assertion entities filing Section 337 cases.139 The Commission reversed decades of practice, ruling that to fulfill the domestic industry requirement based on licensing, a complainant must produce an article that practices the asserted patent.140 Further, the Commission held that to fulfill the domestic industry requirement based on research and development activities, a complainant must prove that there is a nexus between the U.S. based research and development and the asserted patent.141 In response, patent assertion entities started to work around the new domestic industry standards: they would sue a company, settle, provide a license to the company, and then subpoena the company to provide documentation in the Section 337 proceeding to show the patent assertion entity satisfies the domestic industry requirement. In response, Congress has introduced the “Trade Protection, Not Troll Protection” bill.142 The bill tightens the domestic industry requirement again such that any licensing must lead to a product; licensing that happens after a product already exists is not sufficient.143 In addition, any licensees who provide proof of domestic industry must join the ITC case voluntarily, preventing the “domestic industry by subpoena” problem.144 In sum, the ITC has proven through its history that it has the ability to adapt to an evolving patent landscape.
CONCLUSION
Critics overlook the pro-utilitarian aspects of the ITC as a patent litigation venue. The jurisdiction, lack of jury, fast proceedings, and remedies provided by the Commission protect incentives for innovation. In addition, the ITC provides important patent-specialized and trade-focused viewpoints that add to the development of substantive patent law doctrine. Overall, the procedural and substantive advantages of the Commission establish it as an important player in U.S. patent law. As long as it continues to be flexible and react appropriately to changes in patent law, the ITC is here to stay.
Trade wars go nuclear.
Hillman 18 Jonathan E. Hillman 18 [a fellow with the Simon Chair in Political Economy at the Center for Strategic and International Studies in Washington, D.C., and a former policy adviser to the U.S. trade representative.] 3-20-2018, "Trade Wars and Real Wars," CSIS (Center for Strategic and International Studies), https://www.csis.org/analysis/trade-wars-and-real-wars//susu
The world is rudely awakening to the dangers of President Donald Trump’s tariffs. Markets are correcting. Countries and industries are scrambling for exemptions. Economists now see greater downside than upside to growth projections for the U.S. economy this year. But the hazards could be even greater than anyone wants to admit. As protectionist sentiment rises, so does the risk of war. The link between international commerce and peace has been apparent for so long that it is sometimes taken for granted. As the German philosopher Immanuel Kant wrote in his 1795 essay, Perpetual Peace, “The spirit of trade cannot coexist with war, and sooner or later this spirit dominates every people.” That sounds like wide-eyed optimism, but the underlying logic is narrow self-interest. Nations are reluctant to jeopardize benefits from international commerce, especially when their leaders are bullish about future gains. Greater trade and investment cannot guarantee peace, but it raises the cost of going to war. World War I appeared to toss that idea out and set history’s dustbin ablaze. Prior to the war, globalization was racing along. Between 1870 and 1914, trade rose to 8.2 percent of global gross domestic product. “The complexity of modern finance makes New York dependent on London, London upon Paris, Paris upon Berlin, to a greater degree than has ever yet been the case in history,” Norman Angell wrote in The Great Illusion, his 1910 opus that declared war obsolete. But Germany’s aggression proves the point. German leaders believed the economic environment was turning against them, as the political scientist Dale Copeland has shown. With protectionist policies ascendant—in Britain and its colonies and in the United States, France, and Russia—Germany feared being squeezed out of global markets. These falling trade expectations made war a more attractive avenue for revising the status quo. As Trump weighs additional protectionist measures, a similar gap is emerging between assumptions about globalization and expectations about trade. Norman Angell might feel at home today in Silicon Valley or on Wall Street, where the prevailing assumption is that the world will only become more connected. But historically, globalization has been a roller coaster rather than a smooth sail. After World War I, it took more than six decades for global trade and investment flows to recover. Proponents of global connectivity would be wise to speak up sooner rather than later. Equally troubling is that trade and investment expectations are starting to sour. Thirty percent of fund managers say a trade war poses the greatest risk to markets. A majority of American voters believe a trade war is likely. Sovereign investors are cutting their exposure to U.S. assets. Competitors and partners alike warn against Trump’s tariffs. Gone are any illusions that the president will not follow through on the spirit of his protectionist promises. These are early and minor bumps in what could be a long and much more dramatic ride. Tit-for-tat trade actions could spiral out of the economic realm and into military confrontation. But the greater danger could be less direct and more insidious: a general weakening of economic incentives for keeping the peace among major powers. That raises the risk that miscalculation leads to escalation—in the South China Sea, the Korean peninsula, or elsewhere. It is impossible to say whether conflict will ignite, let alone when and how. But it is easy to see how rising protectionism, actual and expected, can poison international relations. Any honest reckoning of Trump’s trade policies must take these risks into account.
2NC
Net Benefit
NB---Biodiversity---2NC
ITC is key to environmental law compliance, timber regs, wildlife trafficking, and conflict minerals.
Beau Jackson & Michael Buckler 15. Beau Jackson is an associate in Adduci Mastriani & Schaumberg's Washington, D.C., office. Michael Buckler is the CEO and general counsel of Village X Inc., a nonprofit that crowd funds donations to community-led projects with quantifiable impacts in developing countries and provides live picture updates of project impacts. 10-21-15. “Unfair Trade Practice? Prove It Under Section 337.” Law360. https://www.law360.com/articles/713250/unfair-trade-practice-prove-it-under-section-337//susu
Ninety percent of seafood consumed in the United States is imported. Could a U.S. seafood company prohibit the importation of a Thai competitor’s illegally harvested fish? The vast majority of apparel sold in the United States is imported. Could a clothing company exclude from the U.S. market garments that a competitor in Vietnam made with illegal child labor? The answer to these questions is yes: Section 337 of the Tariff Act of 1930 — a trade statute administered by the U.S. International Trade Commission — could be an effective weapon against these and other unlawful trade practices. Although Section 337 is best known as an intellectual property enforcement mechanism, the statute exists to protect U.S. industries and the American public from a range of unfair acts. The language of Section 337(a)(1)(A) — “[u]nfair methods of competition and unfair acts” incident to the importation of products — is profoundly broad, and “unfairness” is not defined in the statute or its legislative history.[1] The ITC has already construed unfairness to include misappropriation of trade secrets, false designation of origin, false labeling, false advertising, violation of the Digital Millennium Copyright Act and antitrust violations.[2] Section 337 rewards successful complainants with a powerful remedy: an exclusion order blocking the importation of goods associated with the unfairness. The ITC may also issue cease and desist orders that prohibit respondents from marketing, distributing or selling products in the United States. Section 337’s reach is international and its adjudication is fast, making the ITC a compelling venue for a company or interest group opposed to an unlawful practice overseas that affects the United States through trade.[3] Upon institution of an investigation, a complainant can immediately serve the respondents — domestic and foreign — with discovery requests seeking information about their business practices. Respondents failing to appear can be held in default. In this way, Section 337 can leverage the appeal of the U.S. marketplace to promote fairer and freer markets worldwide. Prevailing on Non-IP Claims Under Section 337 To establish a prima facie case under Section 337(a)(1)(A), a complainant must demonstrate: (1) unfair methods of competition or unfair acts; (2) relating to imported merchandise; and (3) injury to a U.S. industry from such imports. Unfair Methods or Acts “What is unfair under Section 337(a)(1)(A)?” is a threshold question for any entity seeking to use the statute to challenge imports that do not infringe statutory IP. Notably, the Senate report accompanying the original passage of the statute explained that “[t]he provision relating to unfair methods of competition in the importation of goods is broad enough to prevent every type and form of unfair practice and is, therefore, a more adequate protection to American industry than any antidumping statute the country has ever had.”[4] The predecessor court to the U.S. Court of Appeals for the Federal Circuit recognized that Section 337’s prohibitions are: broad and inclusive and should not be held to be limited to acts coming within the technical definition of unfair methods of competition as applied in some decisions. The importation of articles may involve questions which differ materially from any arising in purely domestic competition, and it is evident from the language used that Congress intended to allow wide discretion in determining what practices are to be regarded as unfair.[5] The ITC has intervened where alleged unfairness in the importation of articles threatens “the assurance of competitive conditions in the United States economy,”[6] even for the purpose of halting such unfairness in its incipiency.[7] In light of its broad scope as written and interpreted, Section 337(a)(1)(A) is practically unbounded. Bottom line: If unfair methods or acts overseas threaten the free and fair operation of the U.S. marketplace, Section 337 may apply. For example, it would be unfair for a Malaysian manufacturer exporting to the United States to pay its workers a wage so low that it violates Malaysian law. Nexus Between Unfairness and Importation As the ITC has explained: It is obvious from our traditional role, not to mention our remedial provisions, that Congress intended Section 337 to attack only unfair trade practices which relate to imported products. It then becomes crucial to discern some nexus between unfair methods or acts and importation before this commission has power to act. A Chinese company manufacturing widgets for the U.S. market would engage in unfairness by defrauding its suppliers into providing it goods and services for free, and such fraud might allow the manufacturer to import the widgets into the United States at an artificially low price. Yet, if the manufacturer pocketed the ill-gotten gains and imported the widgets into the United States at a fair price, the unfairness, while

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