5 in ‘25: International Trade Commission

The past year at the International Trade Commission (ITC) was anything but ordinary. Here, we highlight five key developments — from substantial rule changes to a landmark Federal Circuit ruling — that will shape ITC practice going forward.

#1: Major rule changes to ITC practice and procedure

In February, the ITC implemented its first significant changes to the Rules of Practice and Procedure in seven years.¹

Deposition limits: Depositions are now capped at seven hours per deposition and 20 depositions per side, aligning the deposition rules at the ITC with those of the Federal Rules of Civil Procedure. This is a significant departure from the prior rules, which imposed no time limits on depositions and allowed for more than 20 depositions for complainant-side fact discovery if there were multiple respondents. Parties will have to be more selective and strategic with their use of depositions.

Discovery reforms: The new rules require all objections to discovery requests to be specific in nature. Objecting parties will have to state the specific grounds for the objection and indicate whether they are withholding responsive materials. The ITC will no longer allow boilerplate objections paired with a partial production. This will provide more clarity as to what documents are being withheld, benefiting requesting parties while requiring some additional effort from responding parties.

Complaint-filing updates: The ITC implemented two significant rule changes regarding complaints. First, the Commission can now require complainants to resubmit their complaints if it finds that there are “excessive designations of confidentiality.” This will require complainants to carefully select discrete exhibits to designate as confidential or risk having the respondent’s deadline to respond reset by another 30 days. Second, complainants must now list domestic patent applications in their complaints. This will increase transparency and put respondents on immediate notice of patent applications that have not yet been published.

Overall, these rules provide more transparency in discovery and complaints while reducing overall discovery burdens at the ITC.

#2: Landmark Federal Circuit decision in Lashify v. ITC

In March, in Lashify v. ITC, the Federal Circuit issued a landmark opinion, dramatically expanding the scope of what qualifies as “domestic industry” under Section 337.² Prior to Lashify, sales, marketing, warehousing, quality control, and distribution expenses did not count toward a party’s efforts to satisfy the economic prong of the domestic industry requirement. The Lashify decision brought these types of expenses within the ambit of domestic industry, expanding the availability of the ITC.

This ruling opens the ITC’s doors to more complainants, such as companies that manufacture abroad but have significant U.S. sales and marketing operations.

#3: ITC signals renewed openness to SEP enforcement

Throughout 2025, the Commission signaled that the ITC remains an effective forum for complainants looking to assert standard essential patents (SEPs). For years, SEP enforcement at the ITC has been clouded by uncertainty. SEP holders typically are bound by fair reasonable and non-discriminatory licensing obligations, and the Commission’s primary remedy — broad injunctive relief — has raised questions about whether Section 337 is an appropriate forum for adjudication of these types of patents. The Commission has issued an exclusion order based on an SEP only once, in the 2013 Samsung v. Apple investigation, which was overturned during presidential review. Since then, no SEP investigation has reached a final Commission decision in favor of the complainant.

Despite this historical context, complainants have continued to pursue SEP-based investigations, and in a string of administrative law judge (ALJ) decisions this year, the ITC appears ready to provide them with injunctive relief. First, in a pair of Nokia v. Amazon investigations in which Nokia was asserting SEPs, both ALJs Hines and Elliott issued initial determinations in favor of Nokia and recommended an exclusion order to the Commission. Similarly, in the Ericsson v. Motorola investigation, ALJ McNamara found that Motorola infringed Ericsson’s SEPs and recommended an exclusion order. Although both cases settled before Commission review, these decisions suggest that the ITC is prepared to grant exclusion orders in SEP cases — an outcome that could reshape enforcement strategy for SEP holders.

#4: The Commission’s vacancies: A glass half empty

Since former Commissioner Ronda Schmidtlein departed the ITC in February to join WilmerHale, three of the Commission’s six seats have remained vacant. The remaining commissioners — Karpel, Johanson, and Kearns — have continued to serve on expired terms.

Recent efforts to restore the Commission to full strength have faltered. The Biden Administration’s nominees never reached a final Senate vote, and so far, the Trump Administration has yet to put forward any candidates. While the Commission has managed to keep investigations moving, concerns about delays in high-stakes Section 337 investigations are growing.

The absence of a full Commission has also meant less ideological diversity going into final decisions. The Commission was designed to be a non-partisan body, having no more than three members from the same political party. With only three commissioners, two ideologically aligned commissioners can determine the outcome of an investigation.

Another concern with an understaffed commission is the risk of losing quorum. Under the ITC statute, a majority of commissioners must participate in a vote for there to be quorum. With only three commissioners, two recusals break quorum and could halt an investigation entirely. This situation nearly occurred in December in the Nokia v. Amazon investigation when two of the four commissioners at the time recused themselves. Although quorum was eventually established when Commissioner Schmidtlein left, it highlights the heightened sensitivity of a depleted Commission to quorum issues.

For ITC practitioners, Commission vacancies mean advising clients to expect longer delays between ALJs’ initial determinations and the Commission’s final decision. Pressure on the Trump Administration to fill these vacancies may intensify in 2026.

#5: Pre-issuance investments count toward economic prong

In May, in the PAX Labs v. Stiiizy investigation (337-TA-1392), the Commission ruled that a complainant’s domestic investments made before the issuance of the asserted patents can be considered when analyzing the economic prong of the domestic industry requirement.

ALJ Moore initially found that PAX failed to satisfy sub-prongs (A) and (B) of the economic prong of the domestic industry requirement and did not recommend an exclusion order. The ALJ reasoned that investments made prior to patent issuance should be excluded because under a “plain reading of [19 U.S.C. § 1337(a)(3)] there are no articles protected by the patent before issuance.” ALJ Moore also emphasized that the Commission had never squarely addressed this issue.

On review, the Commission departed from its usual practice of issuing a detailed opinion and instead issued a summary order vacating ALJ Moore’s determination on prior investments and remanded the case. ALJ Moore, on remand, concluded that the economic prong was satisfied and recommended an exclusion order in PAX’s favor.

For ITC practitioners, this ruling clarifies that complainants may rely on pre-issuance investments — such as equipment, labor, and capital — to satisfy the economic prong of the domestic industry requirement. This is particularly important where the complainant invested significantly prior to the issuance of a patent — e.g., in the case of a newly issued patent.