Administrative Agency Antitrust & Trade Regulation Intellectual Property

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FTC and DOJ Issue Proposed Updates to Antitrust Guidelines for Licensing IP

For the first time in 26 years, the FTC and DOJ (the “Agencies”) have issued proposed updates to the Antitrust Guidelines for the Licensing of Intellectual Property, last revised in 1995. The intervening quarter century...more

A Novel Outcome at the International Trade Commission: Patent Claims Invalidated Under Alice in the 100-Day Pilot Program

On August 22, 2016, Administrative Law Judge David Shaw of the International Trade Commission (“ITC” or “Commission”) issued his final initial determination (“the ID”) in Certain Portable Electronic Devices and Components...more

FTC Targets Brand Owner Policing Search Ad Keywords

This Monday, the Federal Trade Commission (the “FTC” or “Commission”) commenced an administrative proceeding against 1-800 Contacts, Inc. (“1-800 Contacts”), alleging that the online contact lens retailer had entered into...more

US Regulators Investigate Chinese Steelmakers for Hacking Trade Secrets

The U.S. International Trade Commission (“ITC”) last week launched an investigation into United States Steel Corporation’s (“U.S. Steel”) complaint that Chinese hackers stole trade secret information—including proprietary...more

In re Certain Activity Tracking Devices, Systems, and Components Thereof

Pepys (17th century) recorded his sleep patterns, so wearable devices that record sleep patterns unpatentable? On April 27, 2016, the U.S. International Trade Commission (ITC) issued an Order indicating that two patents...more

ITC Confirms a Section 337 Violation May be Based on Discontinued Accused Products

On occasion, the allegations in a patent-based a section 337 investigation will apply the asserted patent(s) against an accused product that, by the time the investigation concludes, has been discontinued. This is...more

ITC Section 337 Update - June 2015 #2

Second 100-Day ID Finds Complainant Has Standing In 949 Investigation – As mentioned in prior coverage, on March 12, 2015, the Commission issued a Notice of Investigation in Certain Audio Processing Hardware and Software,...more

ITC grants partial review of ALJ Essex’s decision concerning FRAND issues (337-TA-613)

Yesterday, the U.S. International Trade Commission (ITC) gave Notice that it has determined to review in part ALJ Essex’s decision concerning claim construction and standard essential patent (SEP) issues in the investigation...more

ITC Pilot Program to Expedite Rulings on Whether Exclusion Orders Cover Redesigns and New Products

On February 24, 2015, the ITC announced a new pilot program to decide whether redesigns or new products are covered by ITC exclusion orders. The announced goal of the program is to test the use of expedited procedures for the...more

DOJ Releases Electrifying New Guidance on Standard-Essential Patent Policy

The Department of Justice (the “Department” or “DOJ”) continued its multi-pronged defense of standards-setting organizations (SSOs) who adopt patent policies to prevent hold-up during licensing negotiations. Last week’s...more

DOJ Provides New Guidance on Required Licensing of Essential Patents in Standard-Setting

DOJ recently concluded that a standard-setting organization's proposal to update its policy regarding patents underlying its standards was pro-competitive. DOJ's analysis of the association's process and legal structure...more

Federal Circuit Upholds ITC’s Authority to Enforce Consent Order Covering Third-Party Products

uPI Semiconductor Corp. v. U.S. International Trade Commission and Richtek Technology Corp. v. U.S. International Trade Commission - The U.S. Court of Appeals for the Federal Circuit affirmed in part and reversed in...more

Sham-Wow! Antitrust Liability May Attach to Sham Administrative Petitions

Addressing whether the “sham” exception to Noerr-Pennington immunity is limited to sham litigation in courts, the U.S. Court of Appeals for the Federal Circuit vacated a lower court’s summary judgment of no antitrust...more

Characterization as “Essential Element” Amounts to a Disavowal of Scope

X2Y Attenuators, LLC v. International Trade Commission - Addressing the impact of an alleged disclaimer made in a patent on which asserted patents relied for priority, the U.S. Court of Appeals for the Federal Circuit...more

ITC ALJ Breaks New Ground, Further Heightening the DI Requirement for NPEs in § 337 Cases

According to a recent initial determination by an Administrative Law Judge of the International Trade Commission, a purely revenue-driven NPE cannot prove the existence of a domestic industry by relying solely on the...more

Federal Circuit Finds That FDA Citizen Petition Could Give Rise to Antitrust Liability

In Tyco Healthcare Group LP v. Mutual Pharmaceutical Co., Inc., the Federal Circuit remanded-in-part for the district court to determine whether Tyco’s citizen petition to the FDA gave rise to antitrust liability. Judge...more

ITC Section 337 Update – July 2014

Commission Affirms No Domestic Industry Based On Research And Development In 859 Investigation – On July 21, 2014, the Commission issued a Notice To Affirm In Part, Reverse In Part And Vacate In Part The Final Initial...more

Federal Circuit Says Commission Must Toe the Line in Invisalign ITC Case

In Align Technology, Inc. v. International Trade Commission, the Federal Circuit held that ITC action that violated ITC’s own regulations warranted vacatur under the Administrative Procedures Act. While the case addresses...more

Federal Circuit Makes ITC Comply With Its Own Rules

In an opinion dated July 18, 2014, in Align Technology, Inc. v. International Trade Commission (Fed. Cir. July 18, 2014, No. 2013-1240, -1363) 2014 U.S. App. Lexis 13717, the Federal Circuit vacated and remanded a decision of...more

Advertising Law - July 2014

Online Reviews Not Sufficient To Support Ad Claim, NAD Rules - While recognizing the benefits of using new sources of information, the National Advertising Division (NAD) decided that an advertiser’s use of aggregated...more

Supreme Court's Indefiniteness Ruling Has Immediate Impact at ITC

After a hearing in an Investigation occurred between February 24 and March 7, 2014 and with the parties having submitted their opening post-hearing briefs on March 21, 2014 and their reply post-hearing briefs on March 28,...more

Court Endorses FTC Authority To Require Special Reporting for Pharmaceutical Licenses

A federal court has endorsed the Federal Trade Commission’s authority to adopt regulations under the Hart-Scott-Rodino (HSR) Act that target specific industries. In Pharmaceutical Research and Manufacturers of America v....more

Guest Post: The U.S. Government Continues to Have "Serious Concerns" with Canada's Heightened Patent Utility Requirements

While the United States and Canada share a border, common values and a strong commitment to international trade and security issues, many are surprised to learn that protection of intellectual property (IP) is a source of...more

ITC Affirms Trade Secret Violation Against Chinese Company For Stealing U.S. Rubber Resin Trade Secrets, Imposes 10-Year Import...

The U.S. International Trade Commission has upheld an Administrative Law Judge’s determination that a Chinese company misappropriated its U.S. competitor’s rubber resin trade secrets, and has banned it from importing its...more

October 2013: International Trade Commission Update - ITC Unveils New Pilot Program Aimed at Early Resolution of 337...

The United States International Trade Commission recently unveiled a new pilot program aimed at faster, less expensive resolution of 337 investigations. As part of the pilot program, the Commission “will identify, at...more

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