Goodwin Insights July 03, 2019

Goodwin Insights

The Commission instituted thirteen Section 337 investigations and received eleven new complaints in Q2 2019, as the Commission started to return to normal after the government shutdown in Q1. The majority of the investigations continue to be based on tech patents, but new investigations included both biotech investigations and investigations based on alleged unfair acts such as trade secret misappropriation and tortious interference with contractual relations. On the tech side, we are starting to see a number of investigations addressing 5G issues, including how 5G innovation may affect the public interest.  Particularly, Apple-Qualcomm rulings became public in the 1093 Investigation. The differences in the public interest analysis by ALJ McNamara in the 1093 Investigation compared to the earlier public interest analysis by ALJ Pender in the 1065 investigation were particularly interesting. Although these investigations did not have underlying disputes related to 5G, the impending rollout of 5G technology clearly played a major role in the public interest analysis.  These are undoubtedly only the first of many investigations that will pertain to 5G technology as it continues to be implemented in the United States.

In addition to a number of notable determinations relating to substantive patent law issues, the Commission and the ALJs also issued a number of important determinations relating to the ability to obtain a general exclusion order, the interplay between IPRs and the Commission, and the proper scope of enforcement and modification proceedings. Similarly,  ALJ Lord issued an initial determination relating to the duty to investigate factual allegations forming the basis for the alleged unfair acts, and ALJ Elliot issued an order finding waiver of the attorney-client privilege based on a party’s failure to change its privilege review procedures after finding that multiple privileged documents had inadvertently been produced.