Update: Dan Lang, who commented on this post below, has provided an expansion of the thoughts in his comment. His detailed comments can be found here.
The International Trade Commission (ITCInternational Trade Commission) is supposed to protect U.S. industries from unfair foreign competition. They’re supposed to consider the interests of the U.S. public. But recently, it seems more like the ITCInternational Trade Commission is interested in the ITC’s own power, not the interests of U.S. industry or the public.
Setting aside problems with their procedures that would be solved by adopting the Trade Protection, Not TrollAn entity in the business of being infringed — by analogy to the mythological troll that exacted payments from the unwary. Cf. NPE, PAE, PME. See Reitzig and Henkel, Patent Trolls, the Sustainability of ‘Locking-in-to-Extort’ Strategies, and Implications for Innovating Firms. Protection bill proposed by Reps. Cardeñas and Farenthold, the ITCInternational Trade Commission is now banning products—based on patents that the USPTOUnited States Patent and Trademark Office. See also PTO. has declared invalid.
Can You Exclude Imports Based On Invalid Patents?
Cisco and Arista have been skirmishing with one another over patents on networking products for a while now. Earlier this year, Cisco won an exclusion orderAn order issued by the U.S. ITC as a result of a 337 action, excluding from entry into the United States goods found to infringe a U.S. patent. in the ITCInternational Trade Commission, with the ITCInternational Trade Commission finding that certain Arista products violated a Cisco patent. While the ITCInternational Trade Commission case was ongoing, Arista filed inter partes review petitions challenging the validity of the Cisco patents at the PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA.. A few weeks after the ITCInternational Trade Commission found the patents valid and infringed, issuing an exclusion orderAn order issued by the U.S. ITC as a result of a 337 action, excluding from entry into the United States goods found to infringe a U.S. patent., the PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. found the patents invalid.
Now, when the PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. finds a patent invalid, it doesn’t officially rescind the invalid claims until after the patent owner has had a chance to appeal the PTAB’s determination. So, until Cisco exhausts its appeals (or opts not to appeal), the claims remain in the patent, even though the Patent Office has determined them to be unpatentable.
This isn’t the first time this situation has happened. Last year, the ITCInternational Trade Commission issued an exclusion orderAn order issued by the U.S. ITC as a result of a 337 action, excluding from entry into the United States goods found to infringe a U.S. patent. (an order preventing importation of the allegedly infringing products) based on patents the PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. had recently invalidated. The ITCInternational Trade Commission then stayed enforcement of the exclusion orderAn order issued by the U.S. ITC as a result of a 337 action, excluding from entry into the United States goods found to infringe a U.S. patent. until the courts of appeal resolved the issue of validity. (Ultimately, the patent owner bought the company they’d sued, mooting the exclusion orderAn order issued by the U.S. ITC as a result of a 337 action, excluding from entry into the United States goods found to infringe a U.S. patent., but it appears that the challenged patents will remain invalid.)
But this time it’s different. The ITCInternational Trade Commission isn’t staying enforcement of the exclusion orderAn order issued by the U.S. ITC as a result of a 337 action, excluding from entry into the United States goods found to infringe a U.S. patent.. It’s going to go ahead and enforce an import ban on Arista products, even though the PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. found the patents to be invalid, and even though the Federal CircuitSee CAFC upholds the PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. on appeal on more than 75% of all issues appealed.
What’s Going On At The ITCInternational Trade Commission?
This is just one more example of a recent ITCInternational Trade Commission trend of ignoring the public interest and failing to protect U.S. industries.
A few weeks ago, the ITCInternational Trade Commission decided to investigate Apple based on Qualcomm’s complaints. They did this even though Qualcomm’s complaint was part of a clear strategy to maintain their baseband processor monopoly, an issue briefed to the Commission by numerous third parties (including in my own comments filed at the ITCInternational Trade Commission.) Instituting Qualcomm’s request harms the public interest, a direct contradiction of the ITC’s mission.
And now the ITCInternational Trade Commission is going to exclude importation of products designed and sold by Arista Networks (headquartered in Santa Clara, California), because they don’t want to recognize the PTAB’s authority to determine that a patent should be withdrawn from issue. They’re going to bar the import of a U.S. company’s products because they don’t want to wait to see if the PTO’s decision will be upheld on appeal, even though most PTOPatent and Trademark Office, informally used interchangeably with USPTO. decisions are.
What’s the point in telling the ITCInternational Trade Commission to consider the interests of U.S. industry and the U.S. public if they aren’t going to bother doing so?