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

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Rose S. Lee
Lynn I. Levine
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions