ITC Proposed Amendments to Section 337 Rules

White & Case LLP

As the costs of patent litigation continue to rise, and tribunals work to more efficiently adjudicate disputes, the United States International Trade Commission (“ITC”) appears to be listening to its constituents: on September 16, 2015, the ITC issued a notice of proposed rulemaking concerning its Rules of Practice and Procedure related to its investigations under Section 337. According to the Commission’s website, the proposed rules are necessary to “address concerns that have arisen in Commission practice,” among other technical issues, with the ultimate goal of “reduc[ing] the administrative burden and costs on parties.” It is no secret that the high cost of pursuing and/or defending against an exclusion order at the ITC has been a point of great contention among complainants and respondents for several years. With the proposed rules changes, the ITC is undoubtedly attempting to respond to those concerns, formalizing the “100-day” pilot program for early ruling on potentially dispositive issues, and more closely aligning the Commission rules with the Federal Rules of Civil Procedure. Based on past experience, the proposed amendments are likely to be adopted with some expected modification based on public comments, which the ITC is accepting through November 23, 2015. Once adopted, the changes are expected to take effect in early to mid-2016, affecting investigations instituted after the effective date...

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