International Trade Commission FAQs

1. How long does an ITC investigation take? 

Investigations before the ITC move quickly. A typical investigation will generally be completed within 16 months.

2. Can products be redesigned to avoid exclusion? 

Yes. Companies often respond to ITC investigations by redesigning their product to remove potentially infringing technology. This process can be done during the ITC investigation, allowing companies to prepare an approved redesign that can be used in the event their existing product is excluded from the market.

Companies can also prepare redesigns after an exclusion order has been issued, either through a Part 177 proceeding at the U.S. Customs and Border Protection (CBP) or via a slower but more definitive modification proceeding at the ITC itself. Your ITC attorneys can help you determine the best pathway for your unique circumstances.

3. Can an ITC case impact my products already in stores? 

An exclusion order from the ITC prevents the importation of infringing products. It does not prevent the sale of products already present in the United States.

However, the ITC has the authority to issue cease and desist orders (CDOs) that prevent the sale of infringing products. The Commission often issues this order when the respondent’s domestic inventory of infringing products is large enough that the products’ sale would threaten to undermine the remedy offered by the exclusion order.

4. Can I continue importing or selling products during an ITC investigation? 

Yes, you are generally allowed to import and sell products during an ITC investigation. However, if your imported products are later subjected to a cease and desist order, they could be barred from sale within the United States. Your ITC attorney can help you understand the risks and timelines involved in your unique circumstances.

5. How quickly do I need to respond to an ITC complaint? 

ITC investigations move quickly. After the ITC institutes an investigation, domestic respondents have 21 days to respond, and foreign respondents have 25 days. However, this is just one step in a complex process — read more about the ITC timeline here.

6. How is the ITC process different from a patent infringement suit in district court?

ITC investigations are different from district court litigation in several ways:

• Timelines: Section 337 proceedings at the ITC are faster and more predictable: Investigations typically proceed to trial in about 9 months and are typically concluded within 16 months. District court litigation timelines vary significantly from case to case, and it often takes years for a case to go to trial.
• Remedies: Although the ITC cannot award money damages, the ITC can issue an exclusion order preventing the importation of infringing products to the United States. District courts typically offer monetary remedies, ordering infringing companies to pay damages to patent holders.
• Requirements: In addition to the standard issues of infringement and validity, an action at the ITC requires proof of a domestic industry within the U.S. and importation of an accused product. District court litigation requires only ownership of a patent.
• Extraterritorial reach: The ITC can target foreign manufacturers by barring their products from entry into the United States. District courts cannot easily enforce verdicts against foreign entities that do not have a U.S. presence.
• Enforcement: ITC exclusion orders are automatically enforced at U.S. ports by Customs and Border Protection. District court verdicts are enforced, if necessary, by the winning party through various collection or contempt actions.

Litigants often employ both ITC investigations and district court actions against a suspected infringer. Your attorneys can help you manage and coordinate these multijurisdictional disputes.

7. What is the domestic industry requirement for bringing an ITC investigation?  

The domestic industry requirement is a unique element of ITC Section 337 investigations. It states that complainants seeking to institute an ITC investigation must prove that they have a meaningful U.S. presence tied to the intellectual property being asserted.

To bring an ITC case, the complainant must satisfy the “economic prong” and “technical prong” requirements set by the ITC.

To satisfy the economic prong, complainants must show that they have a significant investment in the U.S. related to the IP in question, such as manufacturing facilities, research and development programs, licensing agreements, or the employment of American workers. To satisfy the technical prong, complainants must demonstrate that they practice at least one claim of the asserted patent in a U.S. product or process. You can learn more about the domestic industry requirement here.