On November 7, 2012, FLH Partner Brian J. Malkin and Associate Christopher Gosselin were in attendance at this year's International Trade Commission Trial Lawyers Association Annual Meeting at the International Trade Commission ("ITC") in Washington, D.C. The theme of this year's meeting was the enforcement of ITC exclusion orders at the border, and the relationship between customs and the ITC.
ITC Chairman Irving A. Williamson opened the meeting, stressing his commitment to reducing the overall length of Section 337 Investigations from 16 months to 13.5 months. He also promised to continue efforts to reign in the cost of discovery during Section 337 Investigations.
During the refreshment break, guests were invited to view the new courtroom on the second floor, and heard brief remarks from Chief Administrative Law Judge ("ALJ") Charles E. Bullock. The new courtroom is spacious and well equipped with modern technology ranging from video projection screens to LCD monitors at every table. The courtroom should see plenty of use once it opens for business, as even with the new courtroom, the ITC still has more ALJs than available space. Although the ITC saw a 30% decrease in newly instituted investigations in 2012 after a record setting number in 2011, the ALJs continue to manage a near record level of active investigations.
Judge Randall R. Rader was the keynote speaker for the dinner. His speech began by promoting greater international cooperation between courts. Judge Rader encouraged the ITC bar to streamline its litigation procedures to save clients costs by utilizing more targeted discovery and to reduce judicial resources by focusing on key issues. Judge Rader acknowledged that the ITC recently took steps towards reducing the volume and cost of discovery, for example the proposed discovery rules published in October, but also encouraged the ITC bar to do more, suggesting the current changes do not reach far enough.
Over the years, the ITC has become an increasingly popular alternative forum for patent infringement cases. The ITC is attractive to patent holders because of its accelerated schedule and differing jurisdictional requirements for foreign defendants. In addition, the ITC is attractive because it offers patent holders a relatively risk-free forum, since a patent holder that loses at the ITC is not estopped from filing a subsequent infringement action in district court. Consequently, many complainants choose to litigate at the ITC before pursuing similar claims in district court. In an unusual turn of events, we recently blogged about a company that lost first in district court, and then went to the ITC seeking an alternative remedy. K-V Pharmaceutical Company lost its FDA-enforcement discretion case in district court last year, but continued the fight over its preterm-birth prevention drug Makena® (17-hydroxypreogesterone caproate solution) ("HPC") by filing a complaint at the ITC, requesting a temporary general exclusion prohibiting the unauthorized importation of HPC.