ITC Section 337 Update – June 2014

by King & Spalding

ITC Updates Facts And Trends In Section 337 Investigations – On June 10, 2014,  the Commission issued an Update entitled “USITC Section 337 Investigations – Facts And Trends Regarding Caseload And Parties.”  On Caseload, the Commission finds that the “number of new Section 337 investigations instituted by the Commission has remained at elevated levels over the past several years.”  Seventy-two investigations were completed in FY 2013, “the highest level ever.”  High tech products are the subject of a substantial number of investigations – “computer and telecommunications products accounted for about 30 percent of new investigations in 2012 and about 38 percent in 2013.”  The number of new investigations involving pharmaceutical and medical devices increased from about 5 percent in 2012 to about 14 percent in 2013.  On Domestic Industry Requirements and NPEs, the Commission notes its disagreement with some commentators suggesting that since the eBay decision on May 15, 2006, NPEs account for the increased caseload at the ITC. A chart comparing the total number of investigations instituted for NPE and non-NPE investigations on an annual basis from 2006 to Q1 2014, shows otherwise, and the Commission further notes that since eBay only four NPEs were successful in obtaining exclusion orders.  With respect to Settlements, the Commission finds “a higher settlement rate for NPE investigations.”  Finally, on the Number of Respondents, the Commission addresses whether the number of named respondents in an investigation has increased since the Kyocera decision in 2008.  A pair of charts plotting data for the number of respondents in investigations instituted on an annual basis from 2006 to Q1 2014 for NPE and non-NPE investigations show that the number of respondents varies substantially from year to year.                                                                                                  

President Obama Designates New Chairman and Vice Chairman of the ITC –The Commission announced two new designations on June 17, 2014:  President Obama designated Meredith M. Broadbent as Chairman of the Commission for the term June 17, 2014 through June 16, 2016; and Dean A. Pinkert as Vice Chairman of the Commission for the same term. Meredith Broadbent was nominated to the Commission by President Obama on November 8, 2011, was sworn in on September 10, 2012 for the Commission term expiring on June 16, 2017. Prior to her service at the Commission, Ms. Broadbent held the William M. Scholl Chair in International Business at the Center for Strategic and International Studies from October 2010. From 2009 to 2010 she was a Trade Advisor at the Global Business Dialogue, a multinational business association focused on international trade and investment issues; and from 2003 to 2008, she served as Assistant U.S. Trade Representative for Industry, Market Access, and Telecommunications.  Dean Pinkert was nominated to the Commission by President Bush on September 7, 2006, was sworn in on February 26, 2007 for the Commission term expiring on December 16, 2015. Prior to Mr. Pinkert’s service at the Commission, he was a senior attorney in the Office of the Chief Counsel for Import Administration at the U.S. Department of Commerce. During 2001, Mr. Pinkert served as the Trade and Judiciary Counsel to Senator Robert C. Byrd (D-WV), and from 1998 through 2000, he was a senior associate in the Litigation and Trade group in the Washington, DC, office of King & Spalding.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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