ITC: PUBLIC INTEREST
The US International Trade Commission has been giving more weight to public interest factors in recent times, as Carl Charneski explains.
Section 337 of the Tariff Act of 1930, as amended, empowers the US International Trade Commission (ITC) to investigate unfair trade practices such as unfair methods of competition and unfair acts in the importation of articles, as well as patent, copyright, trademark, and mask work infringement, where the infringing products are imported into the US.
In the course of its investigations, the ITC
takes into account ‘public interest factors’. T is is done both at the beginning and the end of an investigation. Until recently, public interest factors received little attention. Certainly there have been times when they took centre stage and stole the spotlight, but overall, they just didn’t seem to be important at the ITC—at least, not consistently. Today, that is no longer the case and public interest factors have grown hugely in relevance.
In the public interest T e public interest factors are: • Public health and welfare; • Competitive conditions in the US economy;
• T e production of like or directly competitive articles in the US; and
• US consumers.
T ese factors are fi rst taken into account when a complaint is fi led, and before a notice of investigation is issued. T is early consideration of public interest allows the ITC to determine at the very start of an investigation whether the administrative law judge (ALJ) should take evidence on these factors.
T e second time that public interest factors come into play is aſt er the ALJ issues an initial determination and recommends a remedy (also known as a Recommended Determination). T is article addresses the ITC’s consideration of the public interest in fashioning a remedy in the event of a Section 337 violation.
To understand the potential importance of the public interest factors, one need only look to the statute. Section 337(d)(1) provides that the
www.worldipreview.com World Intellectual Property Review September/October 2012 37
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