Infojustice: The Topsy-Turvy US International Trade Commission

Infojustice.org examines the evolving responsibilities of the US International Trade Commission (ITC) and its decision to bar imports of older Apple iPhones and iPads, finding that they infringed patents held by Samsung.

Infojustice reports:

“The U.S. International Trade Commission (ITC), a once-sleepy tribunal that, until recently, devoted its time to stopping imports of counterfeit handbags and pirated DVDs, has gone rogue.  The purpose of the ITC, originally chartered by Congress in 1916, is “to adjudicate trade disputes between U.S. industries and those who seek to import goods from abroad.”

But recently matters coming before the ITC have expanded, primarily in the area of patents.  In a 2011 paper, Professor Colleen Chien reports that the number of patent suits at the ITC has increased fivefold over the past 15 years, and the number has only increased since then.

Unlike trademark and copyright disputes, many of the patent disputes brought before the ITC are between domestic companies that simply have their products manufactured overseas.  So long as a product is manufactured abroad, the ITC has the authority to block its import into the U.S.  Thus the ITC, which was created to adjudicate international trade disputes, is hearing an increasing number of cases between U.S. companies.  But that’s not all.  In order to bring a suit at the ITC, a company need only show that it has a “domestic industry” to protect, a test that, these days, is not hard to satisfy.  For example, patent trolls that do no more than license patents for a fee have been found to be engaged in a domestic industry (patent licensing).  And foreign companies that sell products in the U.S. are also engaged in a domestic industry.  Thus Samsung, Korea’s largest industrial concern and one of the largest vendors of smart phones and tablets in the U.S., can seek to block infringing imports through the ITC.  Even if those “imports” are made by a U.S. company like Apple.”

Read the full article here.