By Kimberly Parke and Judith Pond
Kimberly Parke is an associate in Dickstein Shapiro’s Intellectual Property Practice. She focuses on patent litigation, including investigations at the International Trade Commission. Judith Pond is a summer associate in the firm’s Intellectual Property Practice.
When faced with an investigation at the International Trade Commission (ITC), in-house counsel have a lot of decisions to make in order to navigate the likely unfamiliar waters.
The ITC is a quasi-judicial executive agency within the federal government. About the USITC, http://www.usitc.gov/press_room/about_usitc.htm (last visited Jun. 11, 2013). The Commission is made up of six presidential appointees, three from each political party. 19 U.S.C. § 1330(a). The ITC includes administrative law judges (“ALJs”), appointed under the Administrative Procedures Act who hear cases and make decisions as to whether there are violations of 19 U.S.C. § 1337 (“Section 337”). See 5 U.S.C. § 556; 5 U.S.C. § 3105; 19 U.S.C. § 1332. Section 337 empowers the ITC to exclude articles from entry into the United States that violate Section 337. There are various ways to violate Section 337, including, inter alia, infringing a valid U.S. patent or trademark. In order for a complainant in the ITC to have standing to seek re...