The International Trade Commission has developed a new 10-factor test to determine whether activities tied to licensing a patent portfolio can satisfy Section 337’s domestic industry requirement. The Commission’s new test decreases the likelihood of summary judgment, and increases the likelihood that complainants will need to offer evidence that products licensed by the complainant meet the claims of the asserted patent in order to satisfy the requirement.

On July 22, 2011, the International Trade Commission (the Commission) offered guidance to parties seeking to satisfy Section 337’s domestic industry requirement through their licensing activities, establishing a new 10-factor test for determining whether any investments made in licensing are tied to the asserted patent and a six-factor test for determining whether such investments are “substantial.” Inv. No. 337-TA-694, Certain Multimedia Display and Navigation Devices and System Components Thereof and Products Containing Same.