As the U.S. International Trade Commission has evolved from a little-used venue to settle intellectual property disputes into a popular forum, Fish & Richardson principal Michael McKeon has been in the middle of developments.
McKeon, who has worked on more than 30 cases concerning Section 337 of the Tariff Act of 1930 before the ITC, said the commission only handled about a half-dozen such cases per year when he started litigating there during the mid-1990s. Now, the ITC decides dozens of Section 337 cases in which the main remedy available is an exclusion order that instructs U.S. Customs and Border Protection to keep foreign products that infringe on American patents from entering the United States.
“It’s a fast, robust and significant forum to litigate patent cases,” said McKeon, who helps teach the first course in the United States focused on Section 337 cases, at George Washington University Law School.
During the past few years, he has racked up major ITC-related wins for electronics companies, including Samsung Electronics Co. and LG Electronics Inc. A victory he secured in 2008 on behalf of LG proved particularly significant. The company had intervened in a patent case involving Broadcom Corp., which sought an ITC exclusion order that would have barred the United States from importing Qualcomm Inc. chips for 3G mobile networks. The chips were used in virtually all 3G wireless devices, including LG products.
McKeon successfully argued before the U.S. Court of Appeals for the Federal Circuit that the ITC lacked authority to issue an exclusion order that affected “downstream” products unless the party that had its goods excluded was named as a respondent by the complainant.
“That was a big sea change,” he said.
McKeon said he is looking forward to discovering what’s next for the ITC. “It will be fascinating to watch as the law develops in this area,” he said.