The Federal Circuit has established that litigation activities cannot generally be used to satisfy the requirement in a Section 337 case before the International Trade Commission that the complainant demonstrate a domestic industry has been established. The case has significant implications for non-practicing entities, who will likely need to establish that efforts were made to engage in licensing negotiations prior to the commencement of litigation.

In John Mezzalingua Associates (d/b/a PPC, Inc.) v. ITC, Case No. 2010-1536 (Fed. Cir. Oct. 4, 2011), the U.S. Court of Appeals for the Federal Circuit, by a 2-1 majority, affirmed a determination by the International Trade Commission (ITC) that the complainant failed to satisfy the domestic industry requirement of § 337 with respect to one of the asserted patents based on its litigation activities. This case was the appeal from the ITC's opinion in Coaxial Cable Connectors, Inv. No. 337-TA-650, which held that litigation activities (including patent infringement lawsuits) only satisfy the domestic industry requirement if a complainant can prove that those activities are related to licensing and pertain to the patent at issue.