The International Trade Commission functions in part to protect industries in the United States from unfair trade acts by foreign corporations. Such acts may include the importation of products that infringe a U.S. patent or that were made using a process that would infringe a U.S. patent if carried out in this country. Traditionally, complainants in the ITC manufactured or sold products in competition with the accused foreign product. Recently, however, nonpracticing entities (NPEs) have turned to the ITC even when they have no competing product.
Three recent events have made the ITC a potentially attractive forum for NPEs. First, the ITC has adopted a liberal view of what constitutes a U.S. domestic industry. See Certain Microsphere Adhesives, Process for Making Same, and Products Containing Same, Including Self-Stick Repositionable Notes, Investigation No. 337-TA-366, Comm. Op. at 24 (Jan. 16, 1996). Second, the U.S. Court of Appeals for the Federal Circuit has held that the requirement to obtain an exclusion order at the ITC is less stringent than the requirement for obtaining an injunction in a U.S. district court after a trial for patent infringement. Spansion Inc. v. Int’l Trade Comm’n, 629 F.3d 1331, 1359 (Fed. Cir. 2010). Third, the Federal Circuit has issued a number of decisions that have made it more difficult for NPEs to maintain their chosen venue for some or all the named defendants. See, e.g., In re Microsoft Corp., 630 F.3d 1361 (Fed. Cir. 2011).
