ITC Litigation

The U.S. International Trade Commission (ITC) has authority under Section 337 of the Tariff Act of 1930 to investigate unfair import practices, including violations of intellectual property (IP) rights. As a result, the ITC is a popular and effective forum for high-stakes, global disputes involving products imported into the United States. In the last five years, Sterne Kessler has handled more cases at the ITC than 90% of firms appearing before the Commission. We excel at handling the complexities of a Section 337 case due to our solid foundation of IP trial and technology experience, our deep understanding of administrative law, and the ITC’s unique rules and procedures. Our attorneys have successfully litigated nearly 50 investigations for clients that include Volkswagen, Juul, Wirtgen, and BTL Industries.

Experienced, Multidisciplinary Teams, with a Strong Client Focus

We have experience representing both complainants and respondents in Section 337 investigations, which typically involve allegations of patent or trademark infringement, misappropriation of trade secrets, and violations of antitrust laws. These cases are fast-moving and complex, with final decisions typically occurring within 15-18 months, and can quickly overwhelm in-house teams with limited resources. A hallmark of our practice is our client service and our ability to mobilize powerful teams at the outset of a case to identify issues and help you navigate the demands of discovery efficiently and cost-effectively. Our teams are led by highly regarded trial lawyers and staffed by technically trained IP lawyers to tailor a strategy to best position your company at the ITC and in parallel proceedings at the Patent Trial and Appeal Board or in U.S. District Courts. On the patent-enforcement side, we work closely with our clients to select the best patent assets for assertion at the ITC. In some cases, this means working with our Patent Prosecution team to review patent applications and write new claims in order to cover and therefore exclude competitor products. On the patent-defense side, we often collaborate with our award-winning PTAB Trials Practice to consider filing immediate petitions for USPTO review, including inter partes review, post grant review and reexamination to maximize our leverage against a patent enforcement action.

Clients also benefit from our proximity to the ITC and the reputation that we have built among the Administrative Law Judges, Commissioners, and other related government officials and agencies, including the Office of Unfair Import Investigations, U.S. Customs and Border Protection’s Intellectual Property Rights Branch, and the Office of the United States Trade Representative. We are also active members of the ITC Trial Lawyers Association, and our attorneys across all experience levels regularly participate in ITC-related bar activities.

Deep Technical Knowledge

Sterne Kessler’s technical bench is an unparalleled strategic advantage—we leverage our team of 100+ advanced degrees, including 60+ Ph.D.s., in science and engineering disciplines to quickly grasp complex technologies for accused products. We effectively explain complex technology and IP concepts to judges in a compelling way that increases the likelihood of a successful outcome.

Creative Strategies

The ITC can issue broad exclusion orders in Section 337 investigations that apply to all infringing products, barring them from being imported and sold in the United States. Companies facing the prospect of an exclusion order can often redesign their products so that they can continue to be imported and sold in the United States. Our team has particular experience and success with redesign at the ITC. We work with respondents at the start of the case to evaluate timing, expense, and other factors that impact introducing redesign into an investigation, including importation issues, and public-interest arguments. We partner with in-house teams to evaluate the complainant’s full patent portfolio to mitigate any potential infringement by the redesigned product. We also work closely with engineers, technical leads, and key business personnel to ensure the redesign meets the ITC’s four-part test to be adjudicated and put on an affirmative case of non-infringement. For complainants, we develop redesign defense plans early to address the issue head on if a redesign is introduced during the fast-moving discovery phase.

Whether you are asserting your patents or defending your products before the ITC, our team of experienced litigators and patent attorneys can help you manage these complex, fast-moving investigations and achieve the most favorable outcome for your business.