On March 22, the U.S. International Trade Commission (ITC) issued a public version of its Commission Opinion in the first case under the Interim Initial Determination (“Interim ID”) program (see here and here ). The Committee’s opinion paper provides insight into this nascent program and reminds us how to properly allocate investments to certify domestic industry in the ITC.
Examples of design patents claimed by Hyundai in the investigation.
Temporary ID program
The Temporary ID Program is the second program introduced by ITC to resolve investigations more efficiently and quickly. The 100-day program, introduced in 2013, gave the ITC director the power to order the chief administrative law judge to make findings on issues deciding the case.
The provisional ID program introduced in 2021 allows ALJs to conduct early evidentiary hearings on critical issues in a case or on issues that could significantly narrow the scope of an investigation. The provisional ID program gives her ALJ, rather than the commissioner, discretion to specify which issues are subject to a provisional ID, and he is different from the 100-day program in that the provisional ID program can be used for issues that are not plaintiffs in a case. It is different from
Use of the temporary ID program
Automakers Kia Motors and Hyundai Motors have filed a complaint alleging violations of 19 U.S.C. Section 1337 (Section 337) by importing replacement vehicle lamps that infringe on the automakers’ design patents. The investigation was integrated because Hyundai Motors is Kia Motors’ largest shareholder.
When a Section 337 investigation is based on patent infringement, as in this case, the complainant is responsible for meeting the Section 337 domestic industry (DI) requirements. This means that an industry exists or is being established in the country. United States in relation to articles protected by patents. There are two aspects to DI requirements. The technical aspect is satisfied by showing that the petitioner’s product (DI product) implements the patent. The other is the economic aspect, which is fulfilled by indicating a significant or substantial investment in her DI product by investing in the subsection. 337(a)(3)(A) plant and equipment, (B) labor and capital, or (C) engineering, research and development, or licensing.
Both studies argued that the technical perspective was met by a variety of replacement lights, each covered by a single patent, with no overlap in patent protection between DI products.
The ALJ Presiding Secretary initiated a study of the Temporary ID Program regarding the economic aspects of domestic industry requirements. The ALJ issued a finding that the economic interest was met by investing in subsections (A) and (B).
Committee opinion
Defendants petitioned for reconsideration of the ALJ’s finding that economic interest was satisfied. Upon consideration, the Committee vacated the ALJ’s findings regarding the economic aspects.
The Commission’s opinion found that Complainant and the ALJ had improperly counted. all The total investment turned out to be sufficient. The European Commission decided that economic benefits need to be demonstrated on a patent-by-patent basis. Therefore, if one domestic industrial product is not overlappingly protected with other patents and he practices only one patent, the petitioner each patent individually. This means that the claimant cannot inflate the domestic industry figures for one patent by investing in other goods protected by completely different patents.
The opinion also found that petitioner improperly aggregated investments across subsections (A) and (B), rather than presenting investments per patent separately for each subsection. The ITC because Complainant improperly aggregated investments across multiple patents, improperly aggregated investments under subsections (A) and (B), and referred to the importance of investments in general rather than individual products. concluded that the petitioner had failed to demonstrate that it met an economic interest.domestic industry requirements for Any Out of 21 patents. ITC did not take any position on the technical aspects.
Take-out
What can we take from this case? As is frequently reiterated in the decision itself, plaintiffs should be careful to allocate their investments appropriately and avoid aggregation. This is especially true in situations such as those described above, where there is no overlap between the patents.
However, proper allocation of investments is good practice in any research. The claimant bears the burden of proving that it meets the DI requirements. A claimant who claims that multiple patents cover her DI product should be prepared to show the total investment amount for each patent. Otherwise, you risk the proof failing. For example, if the claims of one patent are found to be uninfringed or invalid, the total investment does not provide accurate information about how much of the investment is attributable to the remaining valid, infringed patents. I can’t get it.
ITC continues to define the contours of domestic industry requirements in Section 337 and the Temporary ID program. Attorney Womble has extensive experience with her ITC, including as a former ITC attorney. We are uniquely positioned to guide our clients through these complex developments. If you have any questions, comments, or concerns, please do not hesitate to contact your usual Womble attorney or expert.
