Implications for a Redefined Domestic Industry Requirement *

Implications for a Redefined Domestic Industry Requirement *

View Session Speakers

On Wednesday, March 5, the Federal Circuit issued a precedential decision in Lashify, Inc. v. International Trade Commission, vacating an ITC determination following a Section 337 proceeding after finding that the agency improperly applied the statutory test for the economic prong of the domestic industry requirement. The Federal Circuit found the ITC incorrectly applied the test for the economic-prong requirement, which required vacatur of the ITC decision relating to the design patents at issue. In ruling in favor of Lashify, the Federal Circuit resolved a long-running dispute between individual commissioners regarding how to apply the so-called “mere importer” test when determining whether the domestic industry requirement is met.

The Commission majority agreed with the ALJ that Lashify had not satisfied the economic-prong requirement to the domestic injury test. In so concluding, the majority reasoned that it was well settled that sales and marketing activities alone cannot satisfy the domestic industry requirement. The Federal Circuit determined that the Commission was incorrect, deciding that it is not over-inclusive to include those expenses to the extent they relate to employment of labor or capital.

This panel will discuss this ruling, its importance, and whether the ITC will become a more favorable and welcoming venue for more patent owners moving forward.

Materials

• ITC Asks Federal Circuit to Redo Lashify Ruling on Domestic Industry Interpretation
• The Federal Circuit Could Make the ITC a More Appealing Forum
• The Strategic Importance of the ITC for Patent Owners
• Strategic Considerations for Pre-Institution Filings in Section 337 Investigations
• Planning for Success in Section 337 Investigations

Survey

https://www.surveymonkey.com/r/Implications-for-a-Redefined-Domestic-Industry-Requirement