- Timeliness of Decisions: The ITC is known for
its efficient handling of intellectual property cases under section
337, taking 16 to 18 months from filing a complaint to issuing a
Final Determination.
- Attractive Remedies for Complainants:
Successful complainants at the ITC benefit from powerful injunctive
relief, such as exclusion orders and cease-and-desist orders, which
effectively block the importation and distribution of infringing
articles in the U.S. market.
- Favorable Recent Legal Developments: Recent legal changes, including the rejection of stringent production-based requirements for economic domestic industry and flexible interpretations of major investments, heighten the chances for US IP owners to secure relief at the ITC.
The US International Trade Commission (ITC) is renowned for deciding cases quickly.
For its intellectual property cases under section 337, which involves unfair methods of competition in the importation of goods, one of six Administrative Law Judges (ALJs) presides over hearings that typically begin nine or ten months after the filing of a complaint at the ITC.
A few months later, the ALJs issue their decisions (called a Final Initial Determination, or FID) that may undergo further review at the Commission.
The entire process, from the filing of a complaint to the Commission completing its review of the FID and issuing a Final Determination (FD), usually takes 16 to 18 months. And when the Commission issues an FD, it also issues remedial relief that typically becomes effective in 30 days, even if there is an appeal to the US Court of Appeals for the Federal Circuit.
The Commission has in rem jurisdiction over imported articles, and if an ITC complainant is successful, remedies typically involve stopping imports (by issuing an exclusion order) and prohibiting the distribution of articles stockpiled in the US (through a cease-and-desist order). This injunctive type of relief can be very attractive to owners of US IP who sell competing products in the domestic market.
In addition to speed and a powerful remedy, recent holdings by the Federal Circuit, a policy shift at the US Patent and Trademark Office (USPTO), and certain changes at the ITC itself, all make this a particularly good time for litigating patent disputes at the Commission.
Patent Litigation at the ITC
Additional Requirements for Patent Owners
While the ITC can resolve disputes under section 337 for multiple types of IP rights, patent investigations make up a large majority of its docket.
Patent cases in district court require a plaintiff to show infringement of a valid patent right and damages, whereas complainants asserting patents at the ITC need not prove damages, but must show (1) importation of the accused articles, (2) infringement of a valid patent right, and (3) satisfaction of the 'domestic industry' requirement.
A domestic industry, in turn, has two components: a 'technical domestic industry', typically requiring a complainant to practise at least one claim of each asserted patent; and an 'economic domestic industry', requiring a complainant to show significant investments in the US—for example, in plant and equipment, or labour or capital—with respect to articles covered by the patent.
Stated differently, if a respondent at the ITC prevails concerning an asserted patent with respect to any of the issues of non-infringement, invalidity, no importation, lack of an economic domestic industry or lack of a technical domestic industry, then a complainant cannot obtain relief under that patent.
Recent Changes in Law Favorable to Complainants
Economic Domestic Industry
Recent rulings at the Federal Circuit, both directed to the economic domestic industry requirement, bode well for ITC complainants.
Most recently, in Lashify v ITC, 130 F.4th 948 (Fed. Cir. 2025), the Federal Circuit rejected the ITC's production-based approach to the economic prong analysis (see Lashify v ITC, No. 2023-1245, D.I. 117, May 21, 2025; the Federal Circuit has yet to rule on this petition).
Based on its plain reading of the statute, the court determined there is no carve-out in section 337 for sales, marketing, warehousing, quality control, or distribution, and there is likewise no suggestion that these activities must be accompanied by other functions (such as domestic manufacturing) in order to constitute an economic domestic industry.
As a result, US IP owners with significant domestic investments—regardless of their manufacturing footprint—have a greater opportunity to obtain relief at the ITC against importing infringers.
Early this year, the Federal Circuit also affirmed an ITC finding that section 337 does not require a minimum amount of expenditures to constitute a 'significant investment' in a domestic industry.
In Wuhan Healthgen Biotechnology v ITC, 127 F.4th 1334 (Fed. Cir. 2025)[4], the court affirmed an ITC determination that the complainant's domestic expenditures had been significant in relation to the size of the commercial market served by the complainant's product—which, as noted above, must be covered by at least one claim of each asserted patent in order to obtain relief under that patent.
This case brings good news to small US companies that might not yet have large absolute investments or revenues, as the Wuhan court clarified there is no threshold dollar value or rigid formula required to meet the economic prong of the domestic industry requirement.
Policy Shifts at the PTAB
In June of 2022, the USPTO issued a guidance memorandum stating that the Patent Trial and Appeal Board (PTAB) "will not discretionarily deny petitions based on applying Fintiv to a parallel ITC proceeding."[5] This policy resulted in fewer discretionary denials of inter partes review (IPR) petitions, resulting in ITC complainants facing patent validity challenges in parallel PTAB proceedings.
But in February of 2025, the USPTO rescinded the 2022 guidance memo, and it later explained that "the Board will apply the Fintiv factors when there is a parallel proceeding at the International Trade Commission".
As a result, the PTAB will again consider the six detailed factors under Fintiv in determining whether to deny IPR petitions on a discretionary basis when overlapping patent validity challenges have been presented to the ITC.
In March, the USPTO then adopted a new bifurcated process, whereby the USPTO director decides if petitions seeking patent reviews should be denied for discretionary reasons before the PTAB considers the merits of the challenge.
Previously, the PTAB panel assigned to a petition could consider the discretionary denial of a petition, and if the petition was denied, the panel would provide its reasoning in the same ruling that analysed the patent challenger's invalidity arguments.
Now, when a patent owner requests discretionary denial, the USPTO director, assisted by senior board judges, will rule on that issue. A different PTAB panel will review the merits of the petition only if it is not discretionarily denied.
Since this policy shift, the USPTO has issued its first ruling in the context of two IPR petitions (previously instituted by the Board) having a parallel ITC investigation.
In Klein Tools v Milwaukee Tool (IPR2024-01400 and IPR2024-01401), USPTO acting director Stewart concluded that the PTAB had previously erred in its analysis of Fintiv factors 1 and 4, and in its overall weighing of the Fintiv factors.
As to Fintiv factor 1, Stewart concluded that the ITC was unlikely to stay the investigation pending IPR, as the ITC had already conducted a full evidentiary hearing and would likely issue its final determination six months before the statutory deadline for the Board's final written decision.
As to Fintiv factor 4, Stewart concluded that there was substantial overlap between the parallel PTAB and ITC proceedings, with both involving the same parties, same challenged claims, and overlapping prior art references.
These timing and overlap factors are common to IPR petitions filed during ITC litigation, and as shown in Klein Tools, these policy changes lessen the likelihood of parallel proceedings involving substantially overlapping prior art invalidity arguments at the ITC and the PTAB.
Experienced ALJs and Staff Attorneys
Complainants and respondents alike benefit from the experienced and patent-savvy ALJs at the ITC. Several ALJs practised patent litigation in private practice, others worked on complex litigation at the ITC or other agencies before becoming ALJs at the ITC, and all have years of experience litigating patent and other IP matters under section 337.
In addition, in most section 337 investigations, another experienced litigant—a staff attorney from the ITC's Office of Unfair Import Investigations—will join as a party to the investigation. This wealth of experience, coupled with the Commission's detailed petition for review process, results in high-quality patent litigation decisions from the ITC, notwithstanding the compressed time schedule for developing the record at the Commission.
Heightened Focus on Protecting the Domestic Market
A heightened focus on domestic manufacturing and the importance of IP rights creates an environment conducive to ITC litigation. The current administration has advocated for increased manufacturing in the US.
Innovation, inventive activity, and the continued development of advanced technologies have also been hugely important for the American economy. The protection of these technologies from unfair methods of competition in the importation of goods will remain a top priority in the future.
Conclusion
The current legal and administrative landscape makes it a particularly good time to be a complainant at the ITC. Recent Federal Circuit holdings, the PTO's policy shift to again apply the Fintiv factors in the context of parallel ITC proceedings, the ITC's fast pace of litigation, and the administration's emphasis on domestic innovation all favor complainants seeking effective and efficient relief. Taken together, these developments offer complainants a clearer path to relief and enhance the ITC's appeal as a forum for the protection of domestic patent rights.
Originally published by World Intellectual Property Review.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
