“The use of the ITC is expected to continue to increase through 2023 as the forum jurisprudence landscape in district courts evolves.”
This year has been a busier year for the International Trade Commission (ITC) than in previous years. As of December 15, 2022, 56 complaints have been filed, compared to 50 for the whole of 2021. Also, the European Commission said he will open more investigations in 2022 than he did in 2021 and file more lawsuits in 2022 than he did last year. December 7, 2022. It’s an exciting time for the ITC as in-person hearings have resumed. We also expect that growth to continue through 2023 as the forum jurisprudence landscape in district courts evolves.
ALJ’s Bullock and Shaw retire. The Beginning of ALJ Moore
Chief Administrative Law Judge (CALJ) Charles E. Brock retired from the Commission in December 2021 after nearly 20 years of service. Former CALJ Bullock he was appointed to the committee in 2002 and in 2011 he became CALJ. Prior to working on the commission, former CALJ Bullock served as his ALJ for both the Environmental Protection Agency and the Federal Energy Regulatory Commission. He died in November after a brief illness. The ITC bar will miss him and thank him for his many years of service.
ALJ David P. Shaw retired from the Copyright Royalty Board (CRB) in July after being appointed Chief Judge. ALJ Shaw has served as his ALJ on the Commission since 2011, and prior to that he has been an attorney on the Commission for over 20 years. Judge Shaw will serve in the CRB’s interim position to complete a term vacated by his predecessor before commencing a six-year full appointment.
In February, ALJ Clark S. Cheney was appointed to CALJ after serving temporarily. CALJ Cheney, who was appointed to the ALJ in 2018, had worked in the Commission’s General Counsel’s Office for several years prior to his appointment to the ALJ and as Counsel to the Commission’s Administrative Law Judge’s Office. He began his career as a patent examiner at the United States Patent and Trademark Office (USPTO), eventually becoming a clerk for Judge William Curtis Bryson of the Court of Appeals for the Federal Circuit, and spent several years in private practice.
In May, ALJ Bryan F. Moore became the committee’s newest ALJ. Prior to the Commission, ALJ Moore served as an Administrative Patent Judge (APJ) on the Patent Board of Appeals (PTAB) from 2012 until 2022, when he made both decisions. one-sided Appeals and American Invents Act (AIA) proceedings. He was promoted to lead his APJ in the PTAB shortly before joining the committee.
There are several new ALJs on the committee due to retirements in 2022 and new appointments over the past few years. Of her five currently serving ALJs, her longest serving MaryJoan McNamara was appointed in her 2015. Her remaining four have been appointed since 2018. Moore (2022).
Global Crisis Guarantees Public Interest Delays
The global shortage of semiconductor chips and the ongoing COVID-19 pandemic have led to some important public interest decisions at the ITC.
In 2020, CMC Materials, Inc. filed a complaint alleging violation of Section 337 with respect to the importation of certain chemical-mechanical planarizing slurries and components thereof used in the manufacture of semiconductor chips. Certain chemical-mechanical planarizing slurries and their constituents, Inv. No. 337-TA-1204. On its final first determination (ID), the ALJ found violation of §337 of patent infringement. A subsequent Recommended Decision (RD) stated that a Limited Exclusion Order (LEO) and a Cessation Order (CDO) were appropriate, and reimbursed him for 100% of the input value of covered products imported during the presidential election period. The same applies to the security deposit. Review period. In reviewing ID, the committee requested a public interest briefing. A non-party, her Intel, has filed a statement arguing that the introduction of LEO would adversely affect the public interest in light of the current shortage of semiconductor chips. The European Commission then confirmed the Section 337 violation in his January 2022 Opinion and issued his LEO and his CDO for infringing products. However, the Commission found that the public interest justifies a delay of up to one year to allow entities using infringing products in the semiconductor industry sufficient time to switch to non-infringing products. Did.
Also in 2020, Koninklijke Philips, NV and Philips RS North America, LLC filed a complaint alleging violations of Section 337 regarding the importation of cellular communication modules and related products used in connected respiratory devices, including CPAP machines. submitted.Certain UMTS and LTE cellular communication modules and products containing them, Inv. No. 337-TA-1240. ALJ Shaw, while confirming that there were no violations in the final ID, said in the RD that if the committee disagreed and issued a LEO and CDO, he would have 12 months to serve the public interest. I said it should be postponed. ALJ Shaw says his ongoing COVID-19 pandemic has increased demand for respiratory medical devices, and cellular communication modules are generally not replaceable, so he said it would take a year for manufacturers to switch to non-intrusive products. I have provided evidence that it could take longer. However, the commission adopted ALJ Shaw’s no-violation decision in its July 2022 review of some of his IDs, ultimately rendering the public interest issue incontrovertible.
These exemplary decisions highlight a growing public interest at the Commission, especially in relation to supply chain shortages brought on by the COVID-19 pandemic.
Temporary ID program launched for the first time
In 2021, the Commission will launch the Temporary ID Pilot Program. This will allow the ALJ to hold an evidence hearing and before the main evidence hearing he will be briefed on one or more individual issues. Such issues include infringement, patent eligibility, patent invalidity, status, or domestic industry. Provisional IDs must be issued at least 45 days prior to the scheduled start date of the main evidence hearing. Once the ALJ has issued a provisional ID, the Commission may choose to consider and resolve the issues presented. Provisional ID issues can settle a case or resolve a critical issue before a major evidence hearing, thereby facilitating a settlement and even resolving an entire dispute between the parties. This program is intended to support the Commission’s statutory duty to expedite the completion of Section 337 investigation procedures.
Despite interest from ITC bars, this program has not been widely used by ALJ to date. All provisional ID requests have been denied since the program launched in May 2021. To date, the provisional ID program has been used only once by him and CALJ Cheney decided to use it. spontaneously.
Specifically, in January the European Commission launched an investigation. Certain replacement automotive lamps I & II, Inv. The 1291 Investigation was initiated by plaintiffs Kia Corporation and Kia America, Inc., and the 1292 Investigation was initiated by plaintiffs Hyundai Motor Company and Hyundai Motor America, Inc. Import of certain Kia and Hyundai “replacement automotive headlamps and taillamps”. Kia Motors and Hyundai requested that the commission place the study in a 100-day pilot program to adjudicate the economic aspects of domestic industry requirements, but the commission refused. But presiding over CALJ Cheney, spontaneously, set up a provisional evidence hearing limited to the economic aspects of domestic industry requirements under the provisional ID program, making CALJ Cheney the first ALJ to utilize the program. and confirmed that the claimant has met the economic prong requirements. Defendants then petitioned the Commission to review the provisional ID, which the Commission granted and requested additional briefings from both parties.
Termination of PTAB Discretionary Denials in ITC Investigations
In recent years, the speedy nature of the ITC has made it difficult for ITC survey respondents to successfully challenge patents. between the parties Reexamination (IPR) petition for discretionary denial by the PTAB. That seems to have changed this year. Notably, in June his USPTO Director Kathi Vidal issued updated guidance on discretionary denials in his AIA post-grant proceedings, including parallel litigation in other courts.of Apple Inc. vs. Fintiv, Inc.., IPR2020-00019, Paper 11 (PT AB March 20, 2020), the PTAB noted the PTAB’s discretion to refuse to initiate post-grant proceedings in light of parallel litigation on the contested patent. We have set six factors that govern usage. ) whether the court has granted the stay, or whether there is evidence that it might be granted if the proceedings were commenced. (2) the court’s trial date is close to the scheduled statutory deadline for the commission’s final written decision; (3) Investment in Parallel Proceedings by Courts and Parties. (4) Duplication of issues raised in the petition and issues raised in parallel proceedings. (5) Whether the petitioner and the defendant in parallel proceedings are the same party. (6) Other circumstances affecting the exercise of the Board’s discretion, including merits.
PTAB previously dummy Factors Denying Review Based on Parallel Litigation in Both District Court and ITC.Updated Guidance Limitations, among other provisions dummy Prohibits Application to Parallel District Court Proceedings in the ITC and Denies Parallel District Court Proceedings.of dummy Factors seek to promote efficiency by reducing duplicate efforts among the PTAB and other fora. However, unlike a district court, the ITC cannot invalidate a patent, and its invalidation judgment is not binding on the district court or his USPTO. An ITC search cannot conclusively resolve a patent invalidity claim. These decisions require district court litigation or PTAB proceedings. As such, the Director’s Interim Guidance states that refusal to enforce enforcement based on his parallel ITC investigation does not necessarily mean that he will minimize conflict between the PTAB and the district court’s proceedings. I admit that This new guidance removes a hurdle for respondents to her ITC proceedings who wish to challenge a patent he has asserted in the PTAB by filing an IPR petition.
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“USITC in Washington DC”
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