Abstract

The International Trade Commission (“ITC”) provides
injunctive relief from imports that infringe intellectual property to
“domestic industries.” Differences in opinion about what this term
means divide those who do and those who do not practice their
patents. Should they both have access to the ITC?

This article reviews the statute, its history, and its application to
this question. It agrees with the Commission’s finding in Coaxial
Cable that the design and history of the statute favor activity that
furthers the development and commercialization of technology, and
that a bright line test is not warranted, based on the statute. It does,
however, suggest two changes to more closely align ITC practice with
the statute.

The ITC should consistently apply the technical prong, whether
or not the complainant is practicing or non-practicing. The ITC’s
selective application of this requirement is inconsistent with the plain
language of the statute and disadvantages practicing complainants
relative to their non-practicing counterparts. In applying the
economic prong to 337(a)(3)(C) cases, the ITC should take into
account the statute’s design and legislative history. In doing so, it
should give greater weight to activities undertaken to transfer and
commercialize technology, and less to activities that do not.