ITC
manufacturers that had not been named in the investigation couldn’t be included within the scope of the exclusion order. What I think that has meant, just in terms of how litigants look at it now, is that there are a lot more respondents being named. Parties have responded to that case, and it does increase our workload.
What advantages does the ITC provide patentees as a forum over a district court?
In terms of why an entity would choose the ITC, our experience from our litigants is that it’s the remedies; it’s the ability to have an exclusion order. You might still want damages, in which case, you also need to go to a district court. But the nature of our remedy—and many litigants like the fact that we have an expeditious process and we usually get things done within 18 months—usually means that your relief could be more immediate than just going to the district court. Another advantage is the expertise of the forum: our administrative law judges only hear Section 337 cases, as opposed to a district court judge who is going to have a big criminal caseload and maybe many other things going on, so we’ve heard that as well.
In the Coaxial Cables case, the ITC ruled that litigation expenses related to patent licensing fulfils the domestic industry requirements for a company to make a Section 337 complaint. Have you noticed any change as a result of this case?
I should first note that the case is still going through the system and is on appeal, so I wouldn’t want to predict whether there will be a significant change. A couple of points on that: I think our decision just showed that these cases about the domestic industry requirement are very fact-specific, and I think that will continue to be the case, whatever happens at the Federal Circuit. I don’t think our decision foreshadowed anything except that we would be looking at all these cases more fact-specifically, for evidence of, in this case, the exploitation of a patent and how they established that.
What if anything do you envisage changing at the ITC during your chairmanship and what would you like to change?
As chairman, I’m committed to making sure that the ITC has the necessary resources to be able to conduct our statutory mission. With respect to Section 337 in particular, Congress
has instructed the ITC to complete cases in the earliest practical time. It is something that, as chairman, I take seriously, and I know that my fellow commissioners take it seriously as well. We will look at our procedures to see if there are any changes that we might need to undertake rule- making on. We will talk to the bar about this as well. We do surveys on our exclusion orders and we try to get other feedback. So if there are issues and concerns, we will make sure we take them into account and see if there is anything that we can do better to meet our statutory mission.
Do you have any information about when President Obama is likely to designate a new chairman? Do you know who the next one will be?
Tat’s a question for the White House, but I don’t anticipate any changes in the near term. In my case, my commission expired in June 2008, so the President could nominate and the Senate confirm another commissioner, either to my seat, or to the commissioner whose seat has also expired. But that’s a question for the White House, not me. I’m happy to be chairman for as long as I’m chairman.
www.worldipreview.com
World Intellectual Property Review September/October 2010
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