Blog March 23, 2020
ITC Economic Prong Requires Quantitative Analysis of Complainant's Domestic Activities
- Person title
Lelo Inc. v. International Trade Commission, ___F.3d ___ (Fed. Cir. May 11, 2015) (Moore, Clevenger, REYNA) (U.S.I.T.C.) (4 of 5 stars)
Federal Circuit reverses determination that ITC complainant had a domestic industry in its asserted patent.
The ITC erred in reasoning that because certain components in an ITC complainant's patented product were "crucial" to the patented device, even modest domestic expenditures associated with those components could satisfy the economic prong of the domestic industry requirement. Section 337(a)(3)'s requirement of "significant" or "substantial" domestic investment/employment requires a quantitative analysis of a complainant's domestic activities.
The 2007 ITC investigation Certain Male Prophylactic Devices did not support establishing domestic industry's economic prong without any quantitative analysis. In that case, quantitative analysis was used in partial support of the domestic industry determination. Moreover, that case involved a "significant employment of labor" because the complainant used a U.S. subcontractor that provided a detailed accounting of time spent on custom components for the complainant, while, here, the complainant simply purchased "off-the-shelf" components from U.S. retailers. Because, in this case, the complainant's domestic commercial activities were held to be insignificant, the ITC should have held that the complainant did not satisfy the economic prong of section 337's domestic industry requirement. That those components for which the complainant had some "modest" domestic activity were crucial to the patented product could not, without more, satisfy the statute.
The opinions expressed are those of the authors on the date noted above and do not necessarily reflect the views of Fish & Richardson P.C., any other of its lawyers, its clients, or any of its or their respective affiliates. This post is for general information purposes only and is not intended to be and should not be taken as legal advice. No attorney-client relationship is formed.
Blog November 4, 2019
Legal Alert: Arthrex, Inc. v. Smith & Nephew, Inc. - What Did the Federal Circuit Do?
Blog November 4, 2019
Legal Alert | Arthrex, Inc. v. Smith & Nephew, Inc. — What Did the Federal Circuit Do?
Blog August 17, 2018
En Banc Federal Circuit: Patentee's Service of Complaint, Followed by Voluntary Dismissal, Triggers IPR Clock
Blog October 5, 2017
Legal Alert: Federal Circuit Faults PTO's Approach to Claim Amendments During IPR, But Allows PTO to Try to Fix the Problem
Blog May 16, 2016
Software Claims Directed to Specific Improvements in Computer Operations May be "Non-Abstract"
Blog May 2, 2016
Corporate Residence Definition in Patent Cases Unchanged by Congressional Revisions to Venue Statute; Minimum Contacts Under Beverly Hills Fan Reaffirmed
Blog April 11, 2016
Claims Directed to Detection of Gene Variants Patent-Ineligible, Notwithstanding Mental Activity Requirement
Blog July 27, 2015
Judicial Review Available for Decision that a Patent Qualified for CBM Review; § 101 Review Appropriate in CBM Review
Blog July 8, 2015
Software Claim Addressing Concepts Long Known in Other Fields and Lacking Other Inventive Concept Is Not Patent Eligible
Article December 27, 2022
Senior Principal John Dragseth Authors IPWatchdog Article "Top Federal Circuit Decisions of 2022 That No One Told You About"
Blog July 6, 2021
Federal Circuit Finds Digital Camera an Abstract Idea
Blog June 24, 2021
Legal Alert: What to Know about the Supreme Court's Arthrex Decision
Blog June 22, 2021
Legal Alert: Supreme Court Issues Opinion in U.S. v. Arthrex
Article January 4, 2021
Fish Attorneys Author Law360 Article, "Lessons For 2021 From Fed. Circ. Post-Grant Review Cases"
Blog November 13, 2020
Federal Circuit Panel Holds Hatch-Waxman Venue Under the Second Prong of § 1400(b) is Based on Actions Related to ANDA Submission
Q&A November 12, 2020
Q&A with Riqui Bonilla and Nitika Gupta Fiorella for Corporate Counsel Business Journal
Article September 1, 2020
Fish Attorneys Author Biosimilar Development Article, "An Update On 2020 U.S. Biosimilars Regulation & Litigation"
Article July 7, 2020
Fish Attorneys Author Article in Bloomberg Law, "INSIGHT: SCOTUS Decision on Computer Fraud Act Could Impact Trade Secrets"
Blog June 26, 2020