The Strategic Importance of the ITC for Patent Owners

This week our conversation is with Josh Hartman, a partner at Merchant and Gould in the firm’s Washington, DC office, and the head of the firm’s ITC litigation practice. The International Trade Commission, or the ITC as it is commonly called, is an independent, nonpartisan, quasi-judicial federal agency that fulfills a range of trade-related mandates. And one of the primary areas where the ITC has jurisdiction is with respect to unfair importation. Unfair importation practices, which are prohibited by Section 337, most often involve claims relating to intellectual property rights, such as allegations of patent infringement, various forms of trademark infringement or trade secret misappropriation. 

What makes the ITC such an important venue for intellectual property rights owners is the ability to rather quickly obtain injunctive relief in the form of an exclusion order, which prohibits the importation of infringing goods into the United States. 

And while there are other federal venues where injunctive relief can be obtained for trademark infringement, counterfeiting, and trade secret misappropriation, since the Supreme Court issued its landmark decision in eBay v. MercExchange in 2006, it is has been increasingly difficult, in fact absolutely impossible for many patent owners to obtain any form of injunctive relieve against infringers even after the infringer has been adjudicated as being liable as an infringer and the patent in question has withstood all challenges in all forums.