Opinion: The ITC Has Lost Sight of the Public Interest

Every day, Americans rely on technologies that were unimaginable just a generation ago – from advanced medical devices and artificial intelligence–powered applications to connected consumer electronics. These breakthroughs did not emerge in a vacuum. They are the product of an innovation ecosystem shaped by policy choices.

The U.S. International Trade Commission (ITC)—an agency with the extraordinary power to block imports and, in turn, influence the direction of American technology policy—has drifted out of that balance. To align with the Trump Administration’s intellectual property priorities and pro-investment agenda, the ITC is in urgent need of reform.

Patents vs. Public Interest

The U.S. Patent and Trademark Office (USPTO) and the Department of Justice (DOJ) recently submitted a joint comment  urging the ITC to limit  its required analysis of whether a broad ban on imports is in the public interest by solely focusing on how the ban supposedly would protect patent rights. Strong patent enforcement, the agencies said, was in the public interest.

It is an appealing narrative: protect patents, and you protect innovation, jobs, and American leadership. But this framing is at odds with the clear statutory requirements Congress set up for the ITC’s public interest analysis – requirements to weigh a number of broad economic and competitive factors distinct from enforcement of intellectual property rights, like possible adverse effects of a ban on consumers in the U.S. market.

Unfortunately, the agencies’ letter appears to reinforce the ITC’s own recent distorted treatment of the public interest and further demonstrates how far the ITC has drifted from the balanced framework Congress intended for Section 337.

The ITC is not a patent court. It is a trade agency empowered to block the importation of infringing products only when doing so aligns with four explicit public-interest factors: public health and welfare, competitive conditions, domestic production, and the interests of U.S. consumers. Congress wrote these factors into law as real constraints against ITC overreach.

Yet in practice, “public interest” has become virtually meaningless at the ITC. The U.S. Court of Appeals for the Federal Circuit has noted that in nearly 50 years, the Commission has declined to issue an exclusion order on public-interest grounds in only three investigations out of more than 1,300. Three. That is not a functioning safeguard; that is a rounding error.

The Post-eBay Problem

This problem has become more acute for a reason the agencies’ letter fails to acknowledge. After the Supreme Court’s 2006 decision in eBay v. MercExchange ended the era of near-automatic injunctions for patent cases in federal courts, patent-assertion entities (PAEs) increasingly shifted their tactics to the ITC. Where infringement is proven, district courts applying eBay routinely award monetary damages but deny injunctions when a patent owner does not practice the technology or suffers no competitive harm—limitations that reflect basic economic common sense.

But the ITC does not apply the eBay standard, and its exclusion orders can block entire categories of products at the border, giving complainants enormous leverage no matter how far removed those products are from harming actual competition.

The result has been a predictable surge in ITC complaints filed by entities in recent years that do not manufacture anything at all. In 2022, Category 2 NPEs—entities whose business model centers on purchasing and asserting patents, in other words, PAEs, —accounted for 11 of 59 investigations (about 19%). These complainants are not protecting domestic jobs or production.

Unmasking the Funders

Many are pursuing litigation-funded monetization strategies that rely on the threat of ITC exclusion orders to force lucrative settlements. In fact, one recent ITC submission on public interest issues pointed out how critical it is to know who is funding ITC complainants. Without knowing who is funding litigation asking for broad import bans, it is impossible to determine whether a potential ban would be in the public interest.

In any event, patent enforcement actions sponsored by PAEs without genuine domestic industry support cannot be said to be in the public interest.

Beyond the public interest analysis, true reform must address the ITC’s “domestic industry” loophole. Currently, entities that produce nothing can hijack the Commission’s power by pointing to the investments of others. We should require petitioners to demonstrate actual interest in pursuing this remedy from a real producer in the United States in the same product line. If a complainant does not have a product in the marketplace that is actively competing with the imports they seek to block, it should be directed to district court where monetary damages are the appropriate remedy. The ITC should be a shield for American producers, not a toll booth for patent speculators.

Likewise, robust public interest review does not undermine patent rights. Rather, it ensures that remedies reflect the realities of modern, complex products that consumers rely on. Patent owners, including PAEs, can and do bring cases in district court, and the court can determine the appropriate remedy for infringement.

Time for Congress to Act

Congress appears poised to move the ITC back to a proper balance. In recent years, bipartisan proposals to reform the ITC have included measures that would limit PAEs’ ability to abuse the ITC process and revitalize the public-interest standard by requiring the Commission to affirmatively find that exclusion orders are in the public interest. This is a common-sense step that will help modernize the ITC for the digital age. Adding transparency on litigation funding sources also would help.

Reviving the public interest analysis will strengthen American innovation by ensuring that Section 337 serves the national interest by protecting U.S. consumers and the economy, not the business model of patent-monetization firms. Public interest should not be an afterthought. It should be the compass that guides the Commission’s most consequential decisions.

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