No Patent Protectionism at the USITC

In "Patently Protectionist? An Empirical Analysis of Patent Cases at the International Trade Commission" (June, 24 2008), Colleen V. Chien argues that the data fail to support two major criticisms that have been levied against the ITC, that it is anti-defendant and that it is anti-foreigner:

ITC cases involve domestic defendants as often as they do foreign defendants, and 72% of the time in combination. Thus, U.S. companies are thus just as likely to be named in ITC actions as defendants as are foreigners. When cases were adjudicated, plaintiffs at the ITC were more likely to win than plaintiffs in district court (58% v. 35%). However, when cases filed in both venues were compared, most of this difference disappeared (54% v. 50%), cutting against claims of an anti-defendant bias. The data, however, provide some support for the third contention. The ITC takes about half as much time to decide cases, is four times more likely to adjudicate a case (44% v. 11%), and more readily awards injunctions to prevailing patentees (100% v. 79%) than district court. However, the ITC cannot award damages, and its decisions do not bind district courts. The relief provided is thus neither complete nor final. This creates incentives for litigants to file in both venues, which is done 65% of the time and creates the possibility of duplicative litigation and inconsistent results.

Sixty five percent of the time cases are being filed in both venues, yet their outcomes and remedies can be different with a lack of res judicata of ITC decisions and different standards for granting injunctions. Professor Chien concludes with several suggestions for addressing the increase in parallel litigation and concurrent risk of judicial inefficiency, including (1) limiting patent jurisdiction at the ITC to cases that otherwise could not be heard in a U.S. district court, and (2) reducing the incentive for cases to be filed in both venues by harmonizing their rules and remedies.