ITC
In practice, a majority of our complaints are on patent infringement—though we do have some trademark, copyright, misappropriations of trade secrets and other forms of unfair competition cases—and then we fashion a remedy if a violation is found. Tat’s the meat of our IP work, Section 337. Tat goes through our administrative law judge, then is reviewed by the commission, and of course can be appealed to the Federal Circuit.
One other related area is that we provide reports for both the President and our oversight committees, the trade committees in the House and Senate: the Senate Committee on Finance and the House Ways and Means Committee. Tey can ask us to prepare reports. Right now, we are undertaking two reports requested by the Senate Finance Committee relating to IP rights and trade with China. We have a great deal of economic modelling and industry expertise, so these reports focus on looking at the effect on the US economy and US jobs of intellectual property rights infringement in China. So, that’s really a separate part of the ITC’s expertise. Tese are very much fact-finding reports: we don’t make recommendations, we don’t make policy, but we’ll report back to the committees, and then, based
on the information, the committees proceed, whether based on our reports or on something else. Tey might make legislative changes or other policy decisions, but we would just try to respond to their specific questions.
What prompts the requests for reports?
When issues really come to the forefront for the legislature, such as the growing importance of IP both in terms of the growing value to the economy and to businesses, then I think that we tend to get requests seeking to obtain additional information. Oſten, people will make claims about how much something costs, or what the value is, but one of the great advantages of the ITC is that we have people who are very much specialists within industries and in economic analysis. IP is an area where there’s a large range of statistics out there, so I think one of the reasons why they turn to us is to try and figure out if there is a way to put some of the numbers into perspective. We’re working very hard on doing that; it’s a very challenging request.
What advice would you give non-parties to an investigation to ensure they are protected?
One of the things that the commission takes
very seriously is the transparency in our adjudicative procedures, making use of our website and federal register notices, so when there’s a complaint, the full text goes up on the commission website. Te general subject matter is there, so someone should know even if they’re not a party but they’re following these things, that they can take a look at it. Investigations are well publicised in many publications, and then there’s information about the investigation, such as scheduling information, on the ITC website. If an entity later learns of an investigation, and if it has not been named as a party but thinks it has an interest in the investigation, it can file a motion to intervene in the investigation with the administrative law judge. It does have the ability to seek to intervene if it thinks its rights may be affected.
You may have followed a very high-profile case regarding broadband processor chips, involving Broadcom and Qualcomm, in which the commission issued an exclusion order. In that case, the commission excluded not just the chips, but the cell phones incorporating them. When it went to the Federal Circuit, the court ruled that the downstream products and
46 World Intellectual Property Review September/October 2010
www.worldipreview.com
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