On April 16, 2013, the House Committee on the Judiciary, Subcommittee on Courts, Intellectual Property, and the Internet, held a hearing on “Abusive Patent Litigation: The Issues Impacting American Competitiveness and Job Creation at the International Trade Commission and Beyond.” The purpose of this hearing was to discuss alleged abusive litigation practices at the International Trade Commission (ITC). The hearing featured six private sector witnesses. Although the International Trade Commission was not represented at the hearing, former ITC Chairwoman Deanna Okun appeared as a witness.

In his opening remarks, Subcommittee Chairman Coble (R-NC) expressed concerns that patent assertion entities (PAEs) have increasingly used the ITC to drive litigation settlements. Committee Chairman Goodlatte (RVA) expressed similar concerns in his written statement for the record, noting that, “PAEs have used the Commission as a forum to assert weak or poorly-issued patents against American businesses… Nowhere is the disharmony between patent law and Article III court precedent more on display than the application of exclusion orders in technology cases at the ITC.” Goodlatte suggested that the ITC consider taking the following steps to deal with the issue: (1) return to a pre-2010 domestic-industry standard that does not allow legal and certain other expenses to satisfy the domestic industry requirement; (2) apply the public interest test and economic prong of the domestic industry test at the beginning of a Section 337 investigation for purposes of determining claim consideration as well as the issuance of exclusion orders; and (3) using the public interest and domestic industry tests, articulate standards that clarify which patent disputes should be adjudicated by the ITC and which are more properly addressed by U.S. district courts....