Thomas Yeh · July 2012
80 GEO. WASH. L. REV. 1574 (2012)
The International Trade Commission (“ITC”) has recently become a popular venue for nonpracticing entities to enforce their patent rights. Traditionally, section 337 of the Tariff Act required ITC complainants to be engaged in domestic manufacturing and demonstrate injuries to their manufacturing activities. Today, both requirements have been eliminated, dramatically increasing the presence of nonpracticing entities at the ITC. This Essay challenges the ITC’s role in enforcing the patent rights of such entities. The Essay proceeds as follows: After an introduction to the ITC, Part I discusses the ITC’s recent rise in popularity and provides a history of section 337. Part II describes the domestic industry requirement and how it has evolved through statutory changes and ITC decisions, explaining in particular the 1988 Amendments that both allowed licensing to constitute a protectable domestic industry and eliminated the injury requirement for all complainants. Part III outlines the ITC’s standards in determining whether a complainant’s licensing activities are sufficient to meet the domestic industry requirement. Finally, Part IV argues that section 337 should be amended to require licensing complainants to demonstrate an injury to their domestic industry before obtaining an exclusion order. Part IV also provides the rationales behind the proposed amendment, as well as the benefits that would result.
