The International Trade Commission: Potential Bias, Hold-Up, and the Need for Reform

By: William Dolan

The International Trade Commission (ITC) is an alternate venue for holders of U.S. patents to pursue litigation against infringing products produced abroad and imported to the United States. Because the ITC may only grant injunctive relief, it has awarded injunctions in situations where there may have been better and more efficient remedies to the infringement available through litigation in federal district court. The increased likelihood of injunctive relief bolsters the position of patent holders against a wide range of producers in royalty negotiations and can harm the end consumers through a process known as “patent hold-up.” There are currently sweeping and aggressive proposed reforms to reduce this harm to consumers. This iBrief suggests that the optimal reforms would not change the overall structure or scope of the ITC or its jurisdiction. Rather it would harmonize the substantive law, available defenses for respondents, and requirements for injunctive relief between ITC proceedings and litigation in federal district court.

Cite: 2009 Duke L. & Tech. Rev. 011

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