Satisfying the Domestic Industry Requirement at the ITC

Satisfying the Domestic Industry Requirement at the ITC

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While the ITC is a desirable forum for patent owners, it is not available to everyone. The jurisdictional statute — 19 U.S.C. § 1337 — has a standing requirement.  Generally speaking, to access the ITC Section 337 requires that an ITC complainant show (1) that it maintains the required level of economic activity within the United States, and (2) this economic activity is devoted to exploiting the intellectual property right at issue. This standing requirement is known as the “domestic industry requirement,” and the two sub-requirements respectively referred to as the “economic prong” and the “technical prong” of the domestic industry requirement.

The Federal Circuit is expected to soon provide needed clarity on the economic prong of the domestic industry requirement. In the much anticipated ruling in Lashify, the court is expected to resolve a long-running dispute between individual ITC Commissioners regarding how to apply the so-called “mere importer” test when determining whether the domestic industry requirement is met. If the complainant, Lashify, prevails, it could make the ITC a more available forum for patent infringement suits involving entities that have traditionally under-utilized the ITC, including inventors, universities, and start-ups.

This panel will discuss the purpose and evolution of the domestic industry requirement, with specific emphasis on the economic prong and the “mere importer” test, and discuss the significance of the Federal Circuit’s decision in Lashify, and what it will mean with respect to which patent owners will be able to access to the ITC moving forward.

Materials

CAFC Affirms ITC View on Aggregation of Domestic Industry Costs for Disparate Patents

The Federal Circuit Could Make the ITC a More Appealing Forum

Domestic Industry Requirement Basics

Survey

https://www.surveymonkey.com/r/domestic-industry-requirement