Adduci, Mastriani & Schaumberg LLP

Corporate Counsel's IP Insider - Quantity vs. Quality - The ITC may be hearing fewer but more sweeping cases (July, 2015)

Corporate Counsel interviewed Tom M. Schaumberg on the importance of the U.S. International Trade Commission authority to ban the importation of patent infringing articles.

On July 1, 2015, Corporate Counsel's IP Insider published the article "Quantity vs. Quality - The ITC may be hearing fewer but more sweeping cases, quoting Tom.  "It's a vibrant statute.  There may be fewer Section 337 cases than a few years ago, but there is still a steady stream, and those cases are significant, Tom said.

In June 2014, the ITC took the unprecedented step of staying its own cease and desist order pending a ruling by the Court of Appeals for the Federal Circuit [in an appeal filed by ClearCorrect a Pakistani company importing digital models and data used to produce teeth-straightening dental appliances].

Tom said, "This case is asking, in effect, whether we can interpret traditional terms in modern language.  But at a time when digital imports are likely to become more common, it's a reflection of the changing state of our economy."

Tom continued, "The number of cases filed at the ITC by nonpracticing entities has fallen off because the Commission raised the bar on the domestic industry requirement."

The ITC has also started to give serious weight to public interest factors early in its proceedings, requiring this information before it begins an investigation.

"This could come into play when deciding whether to exclude an infringing drug, for example," Tom explained.  "The Commission will ask whether the public interest of having the drug available in the U.S. outweighs infringement under Section 337."



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