Trading

The International Trade Commission Is Opening the Door to Abusive Patent Owners and Endangering U.S. Businesses – EFF

The International Trade Commission, or ITC, is a forum that’s meant to protect U.S. industries from unfair trade practices. But in recent years, the prime beneficiaries of the sprawling ITC haven’t been American manufacturers, but patent owners, patent lawyers, and—you guessed it—patent trolls. 

The ITC is a quasi-judicial agency, that has the power to act a lot like a court. An administrative judge decides disputed issues, including allegations of patent infringement. When patent owners show imported items infringe, the ITC can ban those products from coming into the U.S., with “exclusion orders” that stop further importation.  

The ITC has been steadily expanding its patent enforcement powers for some years now. Patent owners have been treating it as a kind of super-powered patent court, because the exclusion orders they can get are so valuable. That’s especially true now, since court injunctions that stop products from reaching consumer markets have become very hard to get in district courts.

Now, the ITC is expanding its powers again. That’s why we’ve joined with R Street to file an amicus brief [PDF] telling the Supreme Court to stop the ITC from getting involved in domestic patent disputes that have nothing to do with foreign trade. 

In a recent case between Rovi and Comcast, the Commission ruled that it can issue exclusion orders against companies that don’t import anything at all. The ITC has held that Comcast’s set-top boxes can infringe Rovi’s software patents, and be subject to an exclusion order—even though they’re imported by another company, and don’t infringe when they’re imported. What’s
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