Goodwin Insights January 27, 2020

Goodwin Insights

Year’s end is all about the statistics. So, what did the Q4 ITC numbers show? The numbers showed an uptick in life sciences investigations, and an increase in non-practicing entity cases, as well as non-patent cases. We provide a detailed breakdown of the fiscal year stats here. Finally, new filings were down in the final quarter, with only one 337 complaint filed in December.

In terms of substantive developments, the burden for obtaining a general exclusion order may be lowering. At the very least, we were reminded that GEO’s are alive and well at the ITC. Particularly, in the 1121 Investigation, the Commission affirmed a GEO even though large-scale suppliers, who were never discussed during the investigation, could potentially be implicated by the now issued GEO. Although this was not a break from precedent, the decision shows that complainants can prove likelihood of circumvention by focusing on a subset of companies that import the targeted products. So, anytime a new complainant seeks a GEO, companies with products potentially falling within the scope of the investigation should seriously consider intervening. Afterall, it is better to be an active participant than a passive observer on the sidelines, if a company is to influence the outcome of an investigation at all.

Another notable issue during the last quarter arose in Certain Exogenous Beta-Hydroxybutyrate Nutraceutical Products (DN: 3400). There the basis of the complaint was an allegation of antitrust violations. But the commission denied institution because the complainant failed to allege an actual or threatened antitrust injury. This is the same issue that arose in the Certain Carbon and Allow Steel Products (Inv. No. 337-TA-1002) where the Commission heard oral arguments and found that Section 337 requires the complainant to separately plead antitrust injury to have standing. The 1002 holding was never appealed to the Federal Circuit. But the complainant in DN 3400 has filed a notice of appeal. A reversal by the Federal Circuit might open the floodgates to more antitrust actions at the ITC.