Note: Blocking Blocks at the Border: Examining Standard-Essential Patent Litigation Between Domestic Companies at the ITC

By Matthew Norris. Full text here.

The United States International Trade Commission was created to protect domestic industry and American workers from illegal foreign trade practices. Increasingly, domestic companies have turned to the ITC seeking relief for the infringement of standard-essential patents (SEPs) by other domestic companies. In exchange for having their patented technologies adopted as an industry-wide standard, these companies agree to license their SEPs on reasonable and non-discriminatory (RAND) terms, even to their competitors. However, prominent American technology companies, including Apple, Microsoft, and Motorola, frequently have been unable to agree to licensing rates. They have pursued infringement cases at the ITC because of its expedited review timeline, experienced administrative law judges, and sole remedy—a complete ban on the importation of the infringing product, known as an exclusion order. As a result, popular consumer electronics such as Xboxes, iPhones, and iPads could be barred from the U.S. market.

This Note examines why the ITC is an inappropriate venue for these SEP cases and the resulting harm to American consumers. The ITC was established to protect domestic industry, and that interest cannot be served when one American company seeks a SEP exclusion order against another American company. The federal court system is better equipped to conduct the careful balancing required in these cases to protect intellectual property rights and American consumers for maximum benefit to the U.S. economy. Congress should amend the ITC statute to bar the ITC from hearing SEP disputes between domestic companies.