United States: Latest News On The ITC's 100-Day Early Disposition Program

Last Updated: November 14 2016
Article by Rose S. Lee, Lynn I. Levine and Daniel Muino

In a recent ruling, the Commission made clear that public interest issues are not suitable for resolution through the ITC's 100-day Early Disposition Pilot Program.  Specifically, the Commission declined to employ the program to determine "whether the asserted patents were standards-essential and are encumbered by mandatory licensing obligations giving rise to public interest concerns."  Certain Industrial Control System Software, Systems Using Same, and Components Thereof, Inv. No. 337-TA-1020, Order Denying Request for Entry into Early Disposition Pilot Program (Sept. 13, 2016).  Additionally, the Commission recently designated another investigation for a 100-day decision by the administrative law judge ("ALJ") on the issue of whether the economic domestic industry requirement has been met.

The ITC's 100-day Early Disposition Pilot Program has provided a vehicle for respondents to seek a potential early resolution of an ITC investigation.  The program enables the ITC to designate potentially case-dispositive issues for early decision by the ALJ within 100 days of institution of the investigation.  To date, five investigations (including the one instituted this month) have utilized a 100-day proceeding – three on the issue of whether the economic prong of domestic industry had been met; one on the issue of standing; and one on patent invalidity under Section 101 (see our previous post regarding the first four investigations).

Denial of Request for 100-Day Determination Relating to Public Interest

In Industrial Control, Respondent 3S-Smart Software Solutions ("3S") asserted that each of the patents at issue was under review by an industry-standards-setting organization, the OPC Foundation, for a determination of essentiality.  3S contended that if OPC found the patents to be essential, Complainant Rockwell Automation would be required to license the patents to 3S and other OPC members on a royalty-free basis.  In view of OPC's on-going review, 3S asked the ITC to delay institution or use the 100-day program to determine whether the asserted patents are standards-essential and encumbered by the mandatory licensing obligations of the OPC Foundation's IP Policy.

In denying the request for a 100-day determination, the Commission explained that the issue raised by Respondents relating to allegedly standards-essential patents was "pertinent to the statutory public interest factors."  The Commission observed that it "assesses the effect of potential remedies on the statutory public interest factors following an affirmative determination on violation – once the actual scope of the Section 337 violation is determined, including the scope of valid and enforceable IP rights that are infringed (or other unfair acts) as well as the scope of imported infringing articles involved."  The Commission concluded that the issue raised by Respondents was "outside the scope of the Early Disposition Pilot Program as the issue cannot be resolved at the beginning of an investigation."

100-Day Program Is Only Appropriate for Potentially Case-Dispositive Issues

In Industrial Control, the Commission also reiterated its stance that the 100-day program should only be used to review potentially case-dispositive issues.  The Commission declined 3S's request for a 100-day determination that 3S's activities did not constitute a "sale for importation . . . of articles" under 19 U.S.C. § 1337(a)(1)(B).  Because the issue only pertained to one of the three respondents, the Commission found that the issue was "outside the scope of the Early Disposition Pilot Program as it does not involve an issue that is dispositive of the entire investigation."  Inv. No. 337-TA-1020, Order Denying Request for Entry into Early Disposition Pilot Program.  Similarly, in August 2016, the Commission denied a request for a 100-day determination regarding the validity of two of the five design patents asserted in an investigation, stating that the requested determination did not involve a case-dispositive issue.  Certain Quartz Slabs and Portions Thereof II, Inv. No. 337-TA-1017, Order Denying Request for Entry into Early Disposition Pilot Program (Aug. 11, 2016).

Fifth Investigation Designated for 100-Day Determination

In a Notice of Institution issued in Silicon-On-Insulator Wafers on October 19, 2016, the Commission designated the issue of whether complainant has satisfied the economic domestic industry requirement for a 100-day determination by the ALJ.  Prior to institution, the proposed respondent, Soitec, S.A., argued that an investigation should not be instituted because Complainant Silicon Genesis Corporation was a non-practicing entity that relied solely upon the alleged activities and investments of a licensee that was not a co-complainant for domestic industry purposes.

Silicon-On-Insulator Wafers is the fifth investigation to utilize a 100-day proceeding and the third in which the designated issue concerns the economic prong of the domestic industry requirement.  The other investigations in which 100-day proceedings occurred are:

  • Products Having Laminated Packaging, Inv. No. 337-TA-874. The Commission designated the economic domestic industry requirement for expedited determination.  The ALJ determined that the domestic industry requirement was not satisfied, and that determination was affirmed by the Commission.
  • Audio Processing Hardware and Software, Inv. No. 337-TA-949. The Commission designated the issue of standing, for early determination.  The ALJ found that the complainant had standing, and the investigation went forward.
  • Portable Electronic Devices, Inv. No. 337-TA-994 ( blog post).  The Commission designated the issue of patent invalidity under Section 101 for early determination. The ALJ found that the asserted patent was invalid under Section 101, and the Commission affirmed.
  • Inflatable Products with Tensioning Structures, Inv. No. 337-TA-1009.  The Commission designated the economic domestic industry requirement for early determination.  The case settled prior to the 100-day decision.

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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Rose S. Lee
Lynn I. Levine
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