The International Trade Commission, or ITC, is a federal agency in Washington D.C. that investigates unfair trade practices. Unfortunately, in recent years, it has also become a magnet for some of the worst abusers of the U.S. patent system. Now, there’s a bill in Congress, the Protecting America’s Interest Act (H.R. 8037), that could finally get patent trolls out of the ITC—a place they never should have been allowed in the first place.
Patent owners can ask the Commission to investigate an allegation of infringement, in addition to their right to bring a patent infringement case into federal court. The ITC can’t award damages like a district court can, but the ITC can grant an “exclusion order,” which bans importation of the excluded item, and orders customs agents to seize products at the border.
Not everyone is entitled to ask the ITC for an exclusion order; the complainant must be part of a “domestic industry.” But over the years, administrative law judges at the ITC have lowered the bar for what that requires. Engaging in patent licensing and litigation—without more—is enough to establish a “domestic industry” in this country, in the eyes of ITC judges. That means patent trolls, which produce no goods or services, can qualify. Even patent assertion entities based in other countries are using the ITC. For example, last year, the ITC took up a case in which an Ireland-based patent troll sought to stop 80% of U.S. imports on Android tablets, 86% of Windows