Patent holders are increasingly turning to the U.S. International Trade Commission when faced with infringing imports because it has the power to issue exclusion orders—a remedy that is not available in judicial forums—and because the USITC has earned a reputation for moving its cases along swiftly.

Statistics for FY 2011 show that the number of IP-related investigations continues to rise at the USITC and that the average time it takes the Commission to complete a case has continued to drop.

The Commission recently reported that it set a record for new cases filed under Section 337 of the Tariff Act of 1930, with 70 new investigations in 2011, up from 51 new investigations in 2010. Looking at the cases it closed in 2011, the USITC reported an average completion time of 13.7 months (from institution to a decision of violation or no violation), down significantly from the 18.4-month average it reported in 2010 and the 17.9-month average recorded in 2009.

The USITC has the power under Section 337 to investigate allegations of unfair practices in import trade. Most such cases involve allegations of patent infringement, but violations involving trademarks, copyrights, trade dress, trade secrets, and other forms of intellectual property may also be alleged.

In the mid-2000s, the Commission saw a surge in its Section 337 caseload, according to Lynn Levine, Director of the USITC’s Office of Unfair Imports Investigations. Attorneys who practice before the Commission, she said, often cite both the speed of its rulings and the power it has to keep infringing products from entering the United States as their reasons for bringing cases in the USITC.

Ballard Spahr’s Intellectual Property Department routinely advises clients on the option of pursuing claims before the USITC in appropriate cases. For more information, contact Richard W. Miller at 678.420.9340 or millerrw@ballardspahr.com. 

 


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