Respondents before the U.S. International Trade Commission have historically viewed consent orders as a graceful way to exit an investigation by forgoing activities that may result in U.S. sales or importation of products that infringe a valid patent. But these agreements have real teeth, and respondents should proceed with caution when considering this approach in view of two recent decisions from the U.S. Court of Appeals for the Federal Circuit.
In light of uPI Semiconductor Corp. v. International Trade Commission, 767 F.3d 1372 (Fed. Cir. 2014), respondents should be aware that a consent order may impose greater liability than an adverse decision on the merits or a default judgment.
Following DeLorme Publishing Co. v. International Trade Commission, 805 F.3d 1328 (Fed. Cir. 2015), respondents should understand that they may be held liable for consent order violations based on a later-invalidated patent.
In this article, Finnegan attorneys Maximilienne Giannelli and Eric J. Fues discuss consent orders at the U.S. International Trade Commission.
Previously published in Westlaw IP Journal
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