Contreras on the International Trade Commission

I am very pleased to announce that Professor Jorge Contreras is spending the 2024-25 academic term at the University of Minnesota Law School.  He will subbing for me in the fall, teaching Patents and Copyrights while I am on sabbatical, and then will remain here in the spring of 2025 during a term of leave from the University of Utah.

He recently posted a new paper on ssrn, which I previously read in draft, titled Reconsidering The Patent Jurisdiction of the International Trade Commission, 38 Harv. J.L. & Tech. __ (forthcoming).  The paper has already been noted on Law360 and on Bloomberg, but in case you haven’t seen it yet here is a link and here is the abstract:

            The International Trade Commission (ITC), established in 1916 to protect American markets from unfair foreign imports, has transformed into an alternative court for adjudicating patent infringement disputes, often between domestic companies. While the ITC can impose powerful exclusion orders barring the importation of foreign-manufactured goods into the U.S., it is not bound by judicial precedent concerning injunctive relief. What’s more, the ITC undertakes a duplicative infringement and invalidity analysis of asserted patents, often in parallel with district courts adjudicating the same disputes, with no estoppel effect. As a result, the ITC’s patent jurisdiction, as it has expanded over the years, substantially increases costs for parties and creates inefficiency and unpredictability in the patent enforcement system with little benefit other than the tactical litigation advantage it gives to patent asserters. Today, the ITC’s authority to issue exclusion orders enforced by Customs and Border Protection could easily be handed over to federal courts, as could the ITC’s in rem jurisdiction over infringing articles. Accordingly, it is time to renew calls to reconsider the ITC’s patent jurisdiction and possibly to eliminate it entirely.

I am inclined to agree with Professor Contreras’ analysis, for reasons I briefly touched on in this paper back in 2013.  

While on the topic of the ITC, I should also note the recent commentary considering whether the Supreme Court's recent overruling of Chevron will have any impact on the Commission.  For discussions, see, e.g., here, here, and here.