itc case
timeline of an
Complaint and Preinstitution
A case begins with the complainant (plaintiff) filing a complaint with the ITC naming one or more respondents (defendants). The complaint will be reviewed and the ITC will decide whether to institute an investigation. The complaint and supporting documents must address the following key issues:
IMPORTATION: Is the respondent importing infringing articles?
UNFAIR ACT: Do the imported articles infringe U.S. IP rights?
DOMESTIC INDUSTRY: Does the complainant maintain a sufficient U.S. domestic industry exploiting its IP rights?
PUBLIC INTEREST: How does the requested relief affect the public interest?
Month 0
Complaint and Pre-Institution
01
Months
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
Investigation Instituted
00
Early Resolution
Discovery
Claim Construction
Evidentiary Hearing
ALJ's Initial Determination
17
18
19
20
Commission Review and Final Determination
Presidential Review
U.S. Customs Enforcement
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Within 30 days of the filing of the complaint, the ITC will vote on whether to institute an investigation. It nearly always does so. Once an investigation is instituted, an ALJ will be assigned to adjudicate the case. There are currently six ALJs at the ITC: Chief Judge Clark Cheney, Judge MaryJoan McNamara, Judge Cameron Elliot, Judge Monica Bhattacharyya, Judge Bryan Moore, and Judge Doris Hines. The Office of Unfair Import Investigations (OUII) may also participate in the case as an independent litigant representing the public interest. Attorneys from OUII will participate in discovery and submit briefs along with the parties.
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Month 1
Investigation Instituted
Discovery begins immediately upon institution of the investigation. ITC litigants can use most of the same discovery mechanisms that are available in district court, including document requests, interrogatories, requests to admit, and depositions. Experts must submit reports and are subject to deposition.
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Month 1 - 6
Discovery
The ITC provides at least three routes for early resolution. First, parties can request entry into the 100-day program for certain non-complex dispositive issues. Second, the parties can request and the ALJs can issue interim initial determinations under a pilot program on fewer than all issues in an investigation. Third, the ITC’s equivalent of summary judgment is a motion for summary determination, which must be filed at least 60 days before the evidentiary hearing. Parties may seek to resolve some or all of the issues in the case through summary determination, including issues such as importation and domestic industry.
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Month 0 - 6
Early Resolution
In most cases involving patents, the parties will submit Markman briefing concerning claim construction, and most ALJs will hold Markman hearings. The ITC follows claim construction law as set down by the U.S. Supreme Court, the Federal Circuit, and district courts.
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Month 4
Claim Construction
For all issues not resolved through summary determination, the ALJ will conduct an evidentiary hearing, which is essentially a bench trial in which the ALJ receives evidence and hears witness testimony. Prior to the hearing, the parties will submit prehearing statements and briefs setting forth their positions on all contested issues. At the hearing, the parties often present short opening statements, followed by the presentation of witness testimony. Direct witness testimony is sometimes submitted in the form of written witness statements, with the presentation at the hearing limited to cross-examination. The parties will submit post-hearing briefs setting forth the evidence and arguments on all issues.
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Month 9 - 10
Evidentiary Hearing
Following the hearing, the ALJ will issue an Initial Determination (ID) ruling on all contested issues and determining whether there is a violation of Section 337. If a violation is found, the ALJ will recommend a remedy:
Limited Exclusion Order (LEO): Prohibiting the importation of infringing goods made or distributed by named respondents.
General Exclusion Order (GEO): Prohibiting the importation of all infringing goods regardless of whether they are sourced from a named respondent.
Cease and Desist Order (CDO): Prohibiting named respondents from conduct relating to the infringement, such as marketing and selling infringing goods.
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Month 13 - 14
ALJ’s Initial Determination
The parties may file petitions for Commission review of the ALJ’s ID. The Commission may grant review on some or all of the petitioned issues, or deny review (in which case the ID becomes the Commission’s Final Determination). If the Commission accepts review, the parties will submit additional briefing and the Commission will issue a Final Determination affirming, reversing, or modifying the ID’s findings. The Commission’s Final Determination is subject to appeal to the Federal Circuit.
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Month 15 - 16
Commission Review and Final Determination
If the Commission issues a Final Determination finding a violation of Section 337 and imposing a remedy, there is a 60-day period during which the President of the United States (through the Office of the U.S. Trade Representative) may veto the Commission’s remedy. Such veto authority has rarely been exercised.
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Month 17 - 18
Presidential Review
ITC exclusion orders are forwarded to U.S. Customs and Border Protection (part of the U.S. Department of Homeland Security) for enforcement. Importers faced with an ITC exclusion order may seek rulings from Customs as to whether “redesigns” of infringing products are still subject to the exclusion orders.
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Month 19 - 20
U.S. Customs Enforcement
