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You are a successful U.S. company with U.S. patents and European patents with unitary effect. You just learned that a European competitor is making infringing products in Europe and importing them into the U.S. without your authorization. You have been advised that you have a good infringement case in both the U.S. and Europe. To put a stop to this infringing conduct as fast as you can, you have been presented with patent litigation options at the U.S. International Trade Commission and the newly formed Unified Patent Court in Europe, which are not mutually exclusive. As presented to you, the ITC action could result in blocking the imports of infringing products into the U.S. whereas the UPC action could result in preventing the infringing products from being made in the first place. You have some questions though.
What is the ITC?
Established by Congress in 1916, the U.S. International Trade Commission (ITC) in Washington, D.C. is a quasi-judicial federal agency with a core mission to adjudicate matters involving importation activity that violates U.S. intellectual property rights—including patents.1 The ITC is led by six Commissioners who are nominated by the President and confirmed by the U.S. Senate.2
Patent litigation at the ITC is conducted before an Administrative Law Judge (ALJ) in the form of an investigation pursuant to Section 337 of the Tariff Act of 1930.3 Similar to patent litigation in district court, an ALJ is assigned to a case and presides over it through trial.4 In ITC proceedings, there is a Complainant and a Respondent; but ITC proceedings are brought against "goods" not a party, per se.5 Also, the Office of Unfair Import Investigations (OUII) is another party involved in the proceedings that represents the public interest.6 Trial at the ITC comprises an evidentiary hearing before the ALJ.7 The evidentiary hearing can occur less than a year from the complaint being filed.8
If a patent owner prevails at trial—that is, if the ALJ determines that Section 337 has been violated by the accused goods—then the Commission can issue an exclusion order. This is a powerful form of injunctive relief that prevents importation of the infringing products into the U.S.9 This exclusion order is enforced by U.S. Customs and Border Protection at U.S. ports of entry.10
What is the UPC?
Established in 2023, the Unified Patent Court (UPC) in Europe is a court system currently with eighteen EU Member States (Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Portugal, Romania, Slovenia, and Sweden).11 For these EU Member States, the UPC has exclusive jurisdiction over patent litigation regarding classic European patents and European patents with unitary effect.12 These matters include infringement actions, non-infringement declaratory actions, and validity challenges.13
The trial-level court of the UPC is the Court of First Instance.14 This trial court is divided into panels of judges throughout Europe.15 These panels sit with up to three legally qualified judges and upon request, one technically qualified judge.16 The technically qualified judge has qualifications and experience in the technical subject matter of the litigation.17 Trial before the panel in the form of an oral hearing is expected to occur within one year of the filing of the action.18 The duration of the oral hearing is one day.19
If a patent owner prevails at trial, the Court of First Instance can grant injunctive relief as well as award damages. Injunctive relief is enforced by individual Member States.20
What are the similarities between the ITC and UPC?
The biggest similarity between the ITC and UPC is the speed of patent litigation proceedings where the timeline from filing to trial is about a year or less.
Another key similarity is the availability and breadth of the injunctive relief that can be granted in favor of the patent owner. For example, at the ITC, injunctive relief could be an exclusionary order that bans the importation of infringing goods from the entire U.S. At the UPC, the injunctive relief could prevent the infringing goods from being manufactured and exported from most of Europe.
The ITC and UPC both require detailed complaints alleging patent infringement.
What are the differences between the ITC and UPC?
Even if they run at about the same pace, there are distinct differences between the ITC and UPC.
One difference is that UPC actions are initiated upon filing of a complaint for patent infringement in a Court of First Instance. Whereas with complaints filed with the ITC, the Commission reviews the complaint and decides on whether to institute a formal investigation before the action commences.
ITC cases are all filed in one place: Washington, D.C. UPC cases are not limited to a single venue, and the patent owner has some flexibility to file in a Court of First Instance of its choosing.21
Injunctive relief by way of an exclusion order that prevents importation of the infringing goods is the primary relief sought in ITC patent litigation. ITC orders are exclusively enforced by a single entity, the U.S. Customs and Border Protection. UPC orders for injunctive relief are enforced through individual EU Member States. And in addition to injunctive relief, the Court of First Instance at the UPC can also award damages for patent infringement.
At the ITC, patent infringement and other unfair import practices such as trademark infringement and trade secret misappropriation can be litigated, whereas the UPC is focused exclusively on patent infringement and validity issues.
In ITC proceedings the OUII participates as a full party to represent the public interest. The UPC does not have a corollary to the ITC's OUII. Further, in the ITC the Complainant is required also to demonstrate its significant investment in the U.S. relating to the goods covered by its asserted intellectual property rights. The UPC does not have a corollary to the ITC's domestic industry requirement.
Decision Time
Having a basic understanding of the ITC and UPC can help you choose the venue that will allow your company to promptly assert its rights and thwart the infringement.
Footnotes
1 About the USITC, USITC (Oct. 3, 2025), https://www.usitc.gov/press_room/about_usitc.htm.
2 Id.
3 About Section 337, USITC (Oct. 3, 2025), https://www.usitc.gov/intellectual_property/about_section_337.htm
4 Administrative Law Judges Bios, USITC (Oct. 3, 2025), https://www.usitc.gov/alj_bios
5 See Christopher T. Zirpoli, An Introduction to Section 337 Intellectual Property Litigation at the U.S. International Trade Commission, Congressional Research Service (Dec. 21, 2022), https://www.congress.gov/crs_external_products/IF/PDF/IF12295/IF12295.1.pdf
6 Id.
7 Administrative Law Judges Bios, USITC (Oct. 3, 2025), https://www.usitc.gov/alj_bios.
8 19 CFR 210.36(c) ("Hearings shall proceed with all reasonable expedition, and, insofar as practicable, shall be held at one place, continuing until completed unless otherwise ordered by the administrative law judge.").
9 Christopher T. Zirpoli, An Introduction to Section 337 Intellectual Property Litigation at the U.S. International Trade Commission, Congressional Research Service (Dec. 21, 2022), https://www.congress.gov/crs_external_products/IF/PDF/IF12295/IF12295.1.pdf.
10 Id.
11 See Unified Patent Court, Court Presentation (Oct. 3, 2025), https://www.unifiedpatentcourt.org/en/court/presentation.
12 Id.
13 See id.
14 See Agreement on a Unified Patent Court, Art. 7 UPCA, https://www.unifiedpatentcourt.org/sites/default/files/upc_documents/agreement-on-a-unified-patent-court.pdf
15 Id.
16 Art. 8(5) UPCA
17 Id.
18 Rules of Procedure of the Unified Patent Court, Preamble 7 (Sep. 1, 2022), https://www.unifiedpatentcourt.org/sites/default/files/upc_documents/rop_en_25_july_2022_final_consolidated_published_on_website.pdf ("In accordance with these principles, proceedings shall be conducted in a way which will normally allow the final oral hearing on the issues of infringement and validity at first instance to take place within one year whilst recognizing that complex actions may require more time and procedural steps and simple actions less time and few procedural steps.").
19 Rules of Procedure of the Unified Patent Court, Rule 113(1) (Sep. 1, 2022) ("Without prejudice to the application of the principle of proportionality, the presiding judge shall endeavor to complete the oral hearing within one day.").
20 See Art. 82 UPCA.
21 See Art. 33 UPCA.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
