United States: ITC Proposes Expansion Of 100-Day Pilot Program For Early Termination

On September 24, 2015, the ITC published a Notice of Proposed Rulemaking ("NOPR") to amend several of its Rules of Practice and Procedure, most notably to expand the 100-day pilot program for early termination of Section 337 investigations. The ITC also proposes to clarify that one Section 337 complaint can be divided and instituted as multiple investigations, and that the presiding Administrative Law Judge ("Judge") can sever one investigation into multiple investigations. Additionally, the ITC proposes a 30-day time limit for instituting enforcement, modification or rescission, and advisory opinion proceedings. See Rules of General Application, Adjudication and Enforcement, 80 Fed. Reg. 57553 (proposed Sept. 24, 2015) (to be codified at 19 C.F.R. pts. 201 and 210). The deadline to submit comments on the ITC's NOPR is Monday, November 23, 2015.

Expansion of 100-Day Pilot Program for Early Termination

As discussed in a previous client alert, under the 100-day pilot program that was first announced in June 2013, the Commission can identify potentially case-dispositive issues at the institution of an investigation and direct the presiding Judge to issue an Initial Determination ("ID") on the designated issue within 100 days. The Commission has thus far designated only two investigations for expedited consideration under the pilot program. See our prior blog post for discussion of the second such investigation.

In the NOPR, the ITC proposes codifying the original pilot program and expanding it in several respects. Under the proposal, parties would be able to file a motion within 30 days of institution asking the presiding Judge to issue an order designating a potentially case-dispositive issue for early ruling. The Judge would have express authority under the proposed Rules to issue an order designating the issue for early ruling and to hold expedited hearings on the designated issue. The Judge would then issue an ID within 100 days of the order.

As explained in the NOPR: "These changes are intended to provide a procedure for the early disposition of potentially dispositive issues identified by the Commission at institution of an investigation or by the administrative law judge early in procedural schedule for the investigation." NOPR at 57557 (emphasis added). Under the original 100-day pilot program, respondents were limited to requesting assignment to the pilot program in pre-institution correspondence to the Commission. Thus, the proposed rule changes would provide another avenue for respondents to request that cases be assigned to the pilot program by filing a motion within 30 days of institution. By allowing respondents to seek expedited adjudication of particular issues after institution, they may be better informed about particular issues and defenses that may warrant expedited treatment. Counsel for respondents will be able to access confidential information filed with the complaint and may also be able to take limited discovery during the 30-day period after institution. Moreover, Judges may be more willing to grant motions for expedited treatment of certain issues than the Commission has been to date in assigning cases to the 100-day pilot program. Expanded use of the 100-day pilot program may also result in an increase in motions to stay discovery pending the resolution of designated issues.

One Complaint, Multiple Investigations

The ITC also proposes amending its rules to clarify that one Section 337 complaint can be instituted as multiple investigations where the complaint covers different patent families and different technologies. The new rules would also authorize a Judge after institution to sever one investigation into multiple investigations where it would be unwieldy to adjudicate multiple products and technologies in the same investigation and such issues can be adjudicated more efficiently in multiple investigations. Specifically, the ITC proposes to amend 19 C.F.R. § 210.10 to clarify that the Commission may institute multiple Section 337 investigations based on a single complaint. Also, the ITC proposes to amend 19 C.F.R. § 210.14 to allow a Judge to sever an investigation into two or more investigations at any time prior to or upon issuance of the procedural schedule, based upon either a motion or upon the Judge's own initiative and determination that severance is necessary to allow efficient adjudication.

The ITC's proposal to split or sever complaints into multiple investigations leaves a number of unanswered questions. For example, it is not clear exactly what criteria the Commission or a presiding Judge will use to decide whether a complaint should be divided. Is it the number of different technologies involved, the number of patents or patent families, the number of different types of products or all of these? Also, it is unclear whether the severed investigations would remain with the same Judge, or whether one would be transferred to another Judge. Furthermore, the proposed rules do not state whether the notice of institution, which defines the scope of the investigation, would be amended for each severed investigation. This is potentially problematic given another proposed rule change that would require notices of institution to "specify in plain language the accused products that will be within the scope of the investigation in order to avoid disputes between the parties concerning the scope of the investigation." NOPR at 57555. If investigations are severed based on the assertion of multiple unrelated patents and/or technologies, then presumably they may require separate, revised notices of investigation.

30-Day Deadline to Institute Enforcement, Modification and Rescission, and Advisory Opinion Proceedings

The ITC also proposes to establish 30-day time limits for instituting (1) formal enforcement proceedings under 19 C.F.R. § 210.75; (2) modification or rescission proceedings regarding exclusion orders, cease and desist orders, and consent orders under 19 C.F.R. § 210.76; and (3) advisory opinion proceedings concerning whether any person's proposed course of conduct would violate a Commission remedial order under 19 C.F.R. § 210.79. The proposed 30-day time limit for institution of these respective proceedings mirrors the time period for the institution of original Section 337 investigations under 19 C.F.R. § 210.10. NOPR at 57558. These amendments appear to address a gap in the ITC's Rules under which there were previously no deadlines for commencing such post-remedy order proceedings.

Other Proposed Rules

The ITC also proposes a number of less significant rule changes conforming or correcting existing rules to current practice. For example, the ITC proposes adding a rule to allow, within the discretion of the presiding Judge, the use of agreed-upon designated deposition testimony in lieu of live witness testimony under 19 C.F.R. § 210.28. The use of agreed-upon designated deposition testimony has already been permitted by a number of the Judges and thus the rule change appears to conform to existing practice.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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G. Brian Busey
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