When making their case against alleged infringers, patent-holders have two options in the US legal system: filing a case in federal court, or petitioning for an investigation at the International Trade Commission (ITC).
The ITC can't award money damages, but cases there can result in an "exclusion order" banning an imported product from US shelves. It became an increasingly popular venue for high-tech cases in recent years, and several rounds of the smartphone patent battles were fought there. ITC filings are often accompanied by a district court case over the same patents, so monetary damages can be pursued as well.
But a year-end look at ITC statistics shows that it's becoming less popular. The ITC initiated 39 so-called Section 337 investigations last year, which cover intellectual property claims. That's down from 42 the previous year, and a record-setting 69 investigations in 2011, notes the National Law Journal.
Only a minority of the cases involve computer technology, with other cases running the gamut from snowmobiles and steel to dental products.
There are still big tech cases, though. In October, NVIDIA got the ITC to open an investigation against Samsung and Qualcomm; Samsung filed its own complaint against NVIDIA and several other companies in December.
Since the ITC's ostensible goal is to protect US companies from unfair competition, there's a requirement that only a company that's part of a "domestic industry" can file at the ITC. But several years ago, the ITC began opening its doors to the non-practicing entities sometimes called "patent trolls," and that trend continued in 2014. Trolls can file there, because the commission has accepted arguments that the act of licensing patents itself can qualify as an "industry."
Pragmatus Mobile, an offshoot of Intellectual Ventures, filed two cases at the ITC in 2014, seeking to ban products made by Samsung, Nokia, Sony, ZTE, and Asustek. Enterprise Systems Technologies s.a.r.l., a Luxembourg-based NPE, sued Apple, Cirrus, Google, HTC, LG, and Samsung.
In the Enterprise Systems case, the company is seeking to ban popular smartphones such as Samsung’s Galaxy S5, Apple’s iPhone 5S, the LG Nexus 5 and HTC One M8. The company's US-based lawyer argued to the ITC that banning the phones would be in the public interest, because his client's "valid intellectual property rights outweighs any potentially adverse impact." Sales of the phones to the US government could continue, even in the event of an exclusion order, he added.
The ITC constitutes a small proportion of the nation's overall patent disputes. Even in its peak year, its caseload was dwarfed by the more than 3,500 patent lawsuits filed in courts. Still, the cases they do hear have high stakes, because the venue offers a remedy that's not often available in courts. In that regard, ITC cases are a bellwether indicating certain top players and trends in patent battles.
Patent litigation in district courts took a dip in late 2014, which some have speculated is due to new case law that favors defendants, such as the June Alice v. CLS decision.
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