The ITC's Secret Domestic Industry Issue

Law360, New York (April 15, 2015, 10:24 AM EDT) -- In general, the U.S. International Trade Commission will exclude from the U.S. market products that infringe a valid U.S. intellectual property right if there is a domestic industry related to that IP right. 19 U.S.C. § 1337 (a)(2) and (3). The ITC's domestic industry requirement is an important hurdle an IP owner must overcome in order to take advantage of the ITC's unique remedies. To establish that a domestic industry exists, an IP owner, usually a patent owner, may rely on its own activities or those of a licensee. Certain Products Having Laminated Packaging, Laminated Packaging, and Components Thereof, Inv. No. 337-TA-874, Commission Opinion at 15 (Sept. 3, 2013 (public version)) ("a licensor may rely upon a licensee's domestic activities and investments"). In the latter situation, the patent owner can, and sometimes does, keep the identity of its domestic industry licensee a secret. See, e.g., Certain Digital Media Devices, Including Televisions, Blu-Ray Disc Players, Home Theater Systems, Tablets and Mobile Phones, Components Thereof and Associated Software, Inv. No. 337-TA-882, Complaint, Section VIII....

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