United States International Trade Commission and Patent Infringement

A patent is a set of exclusive rights granted to the inventor of an invention. When an inventor is granted a United States patent, the inventor is granted the exclusive right to make, use, sell and import the invention in the United States. If someone other than the patent owner attempts to make, use, sell or import a patented invention, that is considered patent infringement. A patent owner can attempt to stop patent infringement by filing a lawsuit in a Federal District Court to get an injunction and money damages. Another option available to a patent owner that wants to stop the import of a product which infringes their patent is to file a complaint with the United States International Trade Commission.

The United States International Trade Commission is a federal agency of the United States that has similar powers to a court but there are some differences. Although the United States International Trade Commission is not a court, its administrative law judges conduct administrative hearings which are similar to trials. Decisions of the United States International Trade Commission can be appealed to the United States Court of Appeals for the Federal Circuit.

To stop the import of an infringing product into the United States a patent owner can file a complaint in either United States International Trade Commission or a United States Federal District Court. A United States Federal District Court can issue both an injunction preventing the import of infringing product and impose a monetary judgement for the plaintiff. The United States International Trade Commission however, can only issue an exclusion order preventing the import of infringing products, it cannot impose a monetary judgement for the plaintiff.

The standard of review used by the two forums is also different. To be granted an injunction for patent infringement in a Federal District Court four factors are reviewed. The four factor test was articulted by the United States Supreme Court in eBay Inc. v. MercExchange, L.L.C., 547 U.S. 338, 391 (2006). The four factors are: (1) that the patent owner has suffered an irreparable harm; (2) that remedies available at law are inadequate to compensate for that harm; (3) that considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. In contrast, the test used by the United States International Trade Commission is more relaxed. The United States International Trade Commission only needs to consider the third factor, the hardships between the plaintiff and the defendant and the fourth factor, the public interest, when it considers granting an exclusion order. The public interest factors considered by the United States International Trade Commission are limited to (1) the public health and welfare; (2) competitive conditions in the United States economy; (3) the production of like or directly competitive articles in the United States; and (4) United States consumers. A Federal District Court may consider a wider range of public interest factors.

Because the United States International Trade Commission is an administrative body, rather than a court, complaints are generally resolved faster than complaints filed in a court. The speed of the United States International Trade Commission and the lower burden of proof to get an injunction makes the United States International Trade Commission an attractive forum for patent owners to protect their intellectual property.

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