One of the regulatory agencies which has run amuck over the last several years is the U.S. International Trade Commission (ITC). The ITC was formed to protect U.S. domestic industries from unfair foreign competition. But, at least in patent cases, it has strayed very far from that original mission. Too often these days, the ITC lets foreign companies use the ITC against American companies in an end run around American courts.
American courts do not grant injunctions when to do so would be unreasonable or unfair. Generally, this means that American courts will not grant injunctions to entities that do not make or sell products or to SEP holders who have made a commitment to license on FRAND terms. In a complete waste of government resources, however, the ITC allows foreign non-practicing entities and foreign SEP holders to sue American companies in the ITC.[1] Even worse, the ITC often grants these foreign entities exclusion orders that stop American companies from selling products in the United States. That is nuts.
For example, as I write this, the ITC is contemplating whether to institute an investigation based on a complaint brought by a non-practicing entity called the International Semiconductor Group Co., Ltd. which appears to be based in Korea and Japan. This foreign entity is seeking to stop several American companies including Dell Technologies and Hewlett Packard Enterprises, both of which are headquartered in Texas, from selling wireless devices to Americans. How is this even something an agency intended to protect American companies from unfair foreign competition is considering? Why is the agency tasked with protecting American domestic industries not summarily rejecting this request?
It is clear that ITC is not up to the task of making these types of decisions.[2] We need to protect American industry and stop this wasteful reliance on the ITC by foreign companies. We need to stop foreign companies from end running around American courts. We should remove the ITC’s jurisdiction over patent infringement claims.
[1] In 2020 for example, there were twice as many cases filed by foreign entities against American companies as there were cases filed by American companies against foreign entities. See, The ITC In 2020: Anything But Typical - Patent Progress
[2] Don’t get me wrong, for the most part the Administrative Law Judges at the ITC do a good job in individual cases. My objection is not to them, but to the way the agency itself has interpreted its mandate.