What You Should Know About the International Trade Commission

The International Trade Commission (ITC) is authorized by United States law to investigate whether consumer goods imported into the United States infringe U.S. intellectual property (IP) rights, such as patents, copyrights or trademarks, and, if there is infringement, prevent their importation. The process of an ITC investigation begins when a company (the complainant) files a complaint asking the ITC to investigate consumer goods imported into the United States by another company (the respondent).

An ITC investigation is very similar to a lawsuit, except that: (1) the ITC investigation is much faster (typically completed within 15 to 18 months); (2) the ITC investigation is decided only by an Administrative Law Judge (ALJ) and not a jury; and (3) the sole remedy available to the complainant is an Exclusion Order that prevents the importation of the consumer good, and not any money damages.

For these reasons, more and more U.S. IP owners prefer ITC investigations instead of lengthy and costly lawsuits. Also, because the Exclusion Order is enforced against the infringing consumer good, and not a specific company, more and more Asian companies are being brought into ITC investigations, and they now represent the largest group of respondents at the ITC.

After a complaint is filed, the ITC has 30 days to initiate an investigation. After an investigation is initiated, the respondent has 20 days to file an answer. If the respondent fails to timely file the answer, an Exclusion Order can automatically be entered to prevent the consumer goods identified in the complaint from entering the United States.

After the respondent files an answer, the discovery phase begins, which typically lasts five to eight months. The purpose of the discovery phase is to determine all of the pertinent facts, such as how the consumer good is manufactured and how it is used. After the discovery phase, the ITC holds a hearing in Washington, D.C. that can last anywhere from a week to multiple weeks. Within about four months of the hearing, the ITC issues a final determination as to whether or not the consumer goods infringe. If the ITC finds that there is infringement, the ITC has the authority to order U.S. Customs to prevent the infringing consumer goods from entering the United States. These are referred to as Exclusion Orders.

There are two types of Exclusion Orders. A Limited Exclusion Order prevents the specifically named respondent from importing the consumer good into the United States. Meanwhile, a General Exclusion Order prevents anyone from importing the consumer good, including any products that incorporate the consumer good, into the United States. For this reason, a General Exclusion Order is very powerful because includes downstream customers and users of the infringing consumer goods as well. The Exclusion Order is then sent to the United States Customs Service, which is the agency responsible for enforcing the Exclusion Order and preventing infringing consumer goods from entering the United States.

 

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Joseph R. Lanser is a partner in the Chicago office of Seyfarth Shaw LLP. Lanser's practice focuses in intellectual property litigation, particularly patent and copyright infringement litigation. Lanser has participated in all aspects of litigation, including bench and jury trials and hearings on motions for temporary restraining orders and preliminary injunctive relief, before federal district courts, federal appellate courts, including the Court of Appeals for the Federal Circuit, and the U.S. International Trade Commission. His litigation experience has involved a wide range of technologies and issues, including semiconductors, computer hardware and science, chemical science, medical devices, mechanical joining technologies, mechanical devices, electrical devices, food preparation products, Internet, and business methods.