ITC ALJ Permits Evidence Of Post-Complaint Domestic Industry
On April 5, 2018, the United States International Trade Commission (ITC) published the public version of an earlier order by an ITC administrative law judge (ALJ) denying a motion in limine seeking to exclude evidence of the development of a domestic industry after the filing of the complaint. In re Certain Digital Cameras, Software, and Components Thereof, Inv. No. 337-TA-1059, Order No. 52. The ALJ ruled that, while the filing date “may be the bench mark,” there is “no rigid rule that the Commission must consider only at [sic] the investments in a domestic industry at the time of the filing of the complaint.”
The ITC is a unique forum for intellectual-property litigation for several reasons. One of these reasons is the domestic-industry requirement: a patent or other intellectual-property rights owner can obtain relief in the ITC only if it is shown that “an industry in the United States, relating to the articles protected by the patent, copyright, trademark, mask work, or design concerned, exists or is in the process of being established.” 19 U.S.C. § 1337(a)(2). Typically the facts alleged in the complaint are the focus of the domestic-industry inquiry. In this investigation, the respondents (the accused infringers) sought to bar the complainants (the patent owners) from introducing evidence of “post-complaint information” concerning the domestic industry, arguing that there is a “rule that the domestic industry requirement is measured as of the filing of the complaint.”
The ALJ rejected this argument, noting that “if there is any area of law in which the Commission is scrupulous in its efforts to give some flexibility to ensure that patentees have protection while trying to exploit their patents, it is in the area of domestic industry.” Accordingly, she held that there is “no rigid rule that the Commission must consider only at [sic] the investments in a domestic industry at the time of the filing of the complaint.” She also noted that the complainants had “continued to notify Respondents of the changing, developing nature of Complainants’ domestic industry throughout the course of discovery,” and she denied the motion in limine.