Injunction Junction: The Real-World Effect of ITC Remedial Orders

Injunction Junction: The Real-World Effect of ITC Remedial Orders

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The Supreme Court’s decision in eBay overturned the district courts’ practice of generally granting permanent injunctions after a finding of infringement and substantively changed the final result of a successful patent litigation for many, if not most, patent owners. In light of eBay, the U.S. International Trade Commission (ITC), which has always played a large role in patent litigation and enforcement strategies because of its statutory authority to issue exclusion orders and cease and desist orders, emerged as an even more important forum for patent owners. Although monetary damages are not obtainable at the ITC, the Commission does not follow the Supreme Court’s precedent in eBay v. MercExchange, which interpreted Section 283 of the Patent Act, 35 U.S.C. § 283. Instead, the Commission operates under Section 337 of the Tariff Act of 1930, which is a different statutory regime altogether.

The result of the ITC not being required to follow eBay means injunctive-type relief is within reach for those patent owners able to take their case to the ITC. But winning a remedial order from the ITC is just the beginning. The end of an action brought under Section 337 in which remedial orders issue marks the beginning of a critical stage for both complainants and respondents: ensuring enforcement against infringing goods, and avoiding enforcement against non-infringing goods, respectively.

This panel will explore the nuances of ITC remedial orders, including where enforcement jurisdiction lies, and how ITC remedial orders compare with injunctions available in district courts, both in terms of availability, scope and enforceability. The panel will also discuss the real-world effect of ITC remedial orders, and the myriad other issues that arise when a defendant attempts to design around during or after a proceeding, requiring determination of whether imported goods are infringing or subject to Commission exclusion orders.

Materials

Obtaining Injunctions Under eBay Versus at the International Trade Commission