What is an International Trade Commission investigation into patent infringement?

A patent is a set of exclusive rights granted by a government to the inventor of an invention which qualifies for patent protection. To be granted a patent in the United States an inventor must file a patent application with the United States Patent and Trademark Office. When a patent application is filed, the United States Patent and Trademark Office reviews the patent application to ensure that the invention is worthy of a patent. To be granted a patent the invention must be new, useful and not obvious. If the patent application meets all the criteria the inventor will be granted a patent. A patent grants the owner of the patent the exclusive right to make, use, sell and import the invention into the United States. If someone other than the patent owner attempts to exercise one of these exclusive rights that can be considered patent infringement. A patent owner can file a lawsuit to stop patent infringement with an injunction and to get monetary damages for patent infringement which has occurred.

A patent grants an patent owner exclusive rights, but it is up to the patent owner to enforce these rights. The United States Patent and Trademark Office grants patents and the courts enforce the rights associated with patents, but they do not look for patent infringement on their own. The patent owner is on their own.

Another agency in the United States which will enforce patent rights is the United States International Trade Commission. The United States International Trade Commission is a quasi judicial federal agency of the United States that determines the impact of products imported into the United States. The importation of products which infringe on a patented invention falls under the supervision of the United States International Trade Commission. Although the United States International Trade Commission is not a court, its administrative law judges conduct trial-type official administrative hearings. Complaints can be filed with the United States International Trade Commission under section 337 of the Tariff Act of 1930. Proceedings are conducted like a trial, each party is given the opportunity to present evidence and argue their case. An administrative law judge will then make an initial determination. There is no jury. The commissioners of the United States International Trade Commission can then adopt the administrative judge’s determination, modify it, or reverse it. Appeals from the United States International Trade Commission are heard by the Court of Appeals for the Federal Circuit.

Filing a complaint with the United States International Trade Commission is a useful tool for patent owners that want to stop infringing products from being imported into the United States because the process is typically quicker than filing a lawsuit in a court. An International Trade Commission investigation be concluded in less than 18 months while a court case and typically take several years to reach a verdict.

An example of a patent owner using the International Trade Commission to stop the import of infringing products is In the Matter of CERTAIN OBSTRUCTIVE SLEEP APNEA TREATMENT MASK SYSTEMS AND COMPONENTS THEREOF, No. 337-TA-1136 (I.T.C. 2018). In this case Fisher & Paykel Healthcare Limited of New Zealand filed a complaint claiming that ResMed Corp. of San Diego, CA is importing products into the United States that infringe on Fisher’s patents. The products in question are for Continuous Positive Airway Pressure treatment of obstructive sleep apnea. Products that a person puts over their nose to stop snoring. Fisher requests that an exclusion order be issued which would prevent the importation of infringing products into the United States.

By instituting the investigation, the United States International Trade Commission has not yet made any decision on the merits of the case. The United States International Trade Commission has merely determined that Fisher has made a complaint that warrants an investigation. Each party will be given an opportunity to present their case the the administrative law judge.

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