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Using the International Trade Commission to Your Advantage

Intellectual property litigation is a notoriously lengthly and costly process. It can take years for an infringement case to work its way through the court system, and litigation costs can easily run in the millions. In some situations, proceedings before the United States International Trade Commission (ITC) can be a valuable tool in resolving international trade disputes. The ITC is known for rendering decisions in months rather than years, potentially saving the injured party a fortune in legal costs.

Persons who may bring actions before the ITC are not restricted to US citizens. Any entity doing business in the United States can file suit, provided that they were harmed by the wrongful importation of goods into the United States. Particularly, the importation must involve unfair competition or infringement of intellectual property rights. Accordingly, it is not uncommon to find a foreign business filing suit in the ITC against another foreign business.

Under the Tariff Act of 1930, the ITC is vested with the power to exclude offending goods from the United States. If the Commission finds that the goods in question violate the patent, trademark, copyright, or other intellectual property rights of a complaining party, then they may issue an Exclusion Order. The order is enforced by the US Customs Service and has the effect of precluding importation of the offending goods. The Order remains in effect as long as importation would result in a harm that is barred under the Tariff Act of 1930. Furthermore, the burden is on the offending party to show that the wrongful act has ceased and that the Order should therefore be lifted.

Actions brought before the ITC are treated much like an ordinary court proceeding. It begins with the injured party filing a complaint with the Commission. The case is assigned to an administrative law judge, who reviews the complaint. If an adjudicable matter is found, the Commission publishes notice of an investigation in the Federal Register within 30 days of filing the complaint. The Respondent has 20 days to file a proper response, and within 45 days of publishing notice, the Commission sets a target date for concluding its proceedings. Typically, a final decision is rendered within 13 to 16 months of filing a complaint. Additionally, the Complainant can obtain temporary relief (i.e. a Temporary Exclusion Order), much like a preliminary injunction. As with all matters before the ITC, rulings on temporary relief are made expeditiously; typically no later than 120 days from filing the complaint.

Compared to the years that a case may spend in a District Court, 13 to 16 months is a relatively short time. Furthermore, by choosing to file with the FTC, the Complainant does not give up his right to file a traditional infringement action in Federal Court. These actions may be taken simultaneously. Additionally, the ruling of the Commission may be appealed to the Federal Circuit if necessary.

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