Talkin’ Trade

Section 337 investigations at the U.S. International Trade Commission are known for their speed. But in recent years, the ITC has introduced multiple avenues designed to resolve some of these cases even more quickly—including just a few months after institution. On this episode of Ropes & Gray's ITC-focused podcast series, Talkin' Trade, IP litigators Matt Rizzolo, Matt Shapiro, and Brendan McLaughlin are joined by summer associate Ava Kamb to examine the development and history of the ITC's so-called “100-day program,” as well as the more recent interim initial determination pilot program. They discuss the purpose and motivations behind these early disposition proceedings, the mechanics of how they are invoked and progress to a resolution, and consider whether these programs have lived up to expectations. 

While the overwhelming majority of Section 337 investigations at the U.S. International Trade Commission involve patent infringement claims, the ITC is empowered to prohibit an extremely broad set of unfair trade practices and unfair methods of competition. In fact, courts have noted that Section 337 is “broad enough to prevent every type and form of unfair practice” associated with the importation of goods into the United States. On this episode of Talkin' Trade, Ropes & Gray IP litigators Matt Rizzolo, Cassandra Roth, Matt Shapiro, and Brendan McLaughlin discuss the wide variety of claims that may be brought under this subsection of the statute and address some unique aspects of how the ITC adjudicates them. 

Over the past few decades, the ITC has become increasingly focused on intellectual property—and specifically patent—disputes between domestic companies. According to some legislators and commentators, this shift has led the application of Section 337 astray from its original intent: adjudicating unfair trade practices in the importation of goods from foreign countries. Thus, over the past decade, there have been a number of proposed tweaks to Section 337, or the ITC more generally, to address issues like alleged non-practicing entity abuse of the ITC or alleged unfair trade practices implemented by China, such as forced technology transfer. In this episode of Talkin' Trade, Ropes & Gray IP litigators Matt Rizzolo, Matt Shapiro, Brendan McLaughlin, and Nancy Attalla discuss some of the recent proposals and how they would change Section 337 practice. 

In many cases, ITC investigations are not stand-alone proceedings—Section 337 complaints are often accompanied by complaints filed in federal district court. These parallel complaints often are based upon the very same unfair acts underlying the alleged Section 337 violation, such as patent infringement, trademark infringement, or trade secret misappropriation. In this episode of Talkin' Trade, Ropes & Gray IP litigators Matt Rizzolo, Matt Shapiro, Brendan McLaughlin, and Meredith Foor explore the issues created by such parallel complaints, including the potential for litigation on two fronts and the possible preclusive effect—or lack thereof—of Commission determinations.

Ropes & Gray's podcast series Talkin' Trade explores the world of Section 337 unfair import investigations at the U.S. International Trade Commission. Much of the focus of Section 337 litigation at the ITC is on the “violation” phase, where the Commission determines in the first instance whether to issue an exclusion order or cease and desist order. But ITC litigants should not lose sight of follow-on proceedings where these remedial orders can be modified or rescinded, or the ITC can impose civil penalties to enforce these orders. In this episode, Ropes & Gray IP litigators Matt Rizzolo, Matt Shapiro, Brendan McLaughlin, and Becca Gentilli shed some light on these so-called “ancillary proceedings,” explaining why and how they are used, who presides over them, and comparing and contrasting them to other post-violation procedural options.

Ropes & Gray's podcast series Talkin' Trade explores the world of Section 337 unfair import investigations at the U.S. International Trade Commission. All too often, little attention is paid to what happens after the ITC issues an exclusion order in a Section 337 investigation. In this episode—the third in a three-part series on remedies at the ITC—Ropes & Gray intellectual property litigators Matt Rizzolo, Matt Shapiro, Brendan McLaughlin, and Rebecca Gentilli address the myriad of issues surrounding enforcement of Section 337 exclusion orders by U.S. Customs & Border Protection, and discuss the procedural options available to both complainants and respondents.

Ropes & Gray's podcast series Talkin' Trade explores the world of Section 337 unfair import investigations at the U.S. International Trade Commission. In this episode—the second in a three-part series on remedies at the ITC—Ropes & Gray intellectual property litigators Matt Rizzolo, Matt Shapiro, and Nicole Pobre explore the unique and rarely issued General Exclusion Order remedy that is available in ITC Section 337 investigations, and discuss the unique aspects that set this remedy apart from the other types of ITC remedial orders.

Ropes & Gray's podcast series Talkin' Trade explores the world of Section 337 unfair import investigations at the U.S. International Trade Commission. In this episode, which is part one of a three-part discussion on ITC remedies, Ropes & Gray intellectual property litigators Matt Rizzolo, Matt Shapiro, and Rebecca Gentilli discuss the various types of remedies that the ITC can impose when it finds a violation of Section 337 of the Tariff Act, and the unique aspects of these differing remedial orders that ITC litigants and practitioners should be aware of.

Ropes & Gray's podcast series Talkin' Trade explores the world of Section 337 unfair import investigations at the U.S. International Trade Commission. One way in which ITC Section 337 investigations differ from district court litigation is that the day-to-day activities of ITC actions are overseen not by an Article III judge, but by one of six administrative law judges. In this episode, Ropes & Gray IP attorneys Matt Rizzolo, Matt Shapiro, Brendan McLaughlin, and Mike Morales delve into the role and responsibilities these ALJs play in managing a fast-paced Section 337 proceeding, including how the individual ALJs may differ in presiding over their particular cases.

Ropes & Gray's podcast series Talkin' Trade explores the world of Section 337 unfair import investigations at the U.S. International Trade Commission. Historically, challenges to patent subject matter eligibility under Section 101 of the Patent Act have been rare at the ITC, as the Commission's Section 337 proceedings necessarily involve tangible, physical goods. But recent changes in the case law from the Federal Circuit and the Supreme Court have led to a noticeable uptick in the numbers of times the Commission and its ALJs have been forced to grapple with patent eligibility issues. Ropes & Gray attorneys Matt Rizzolo, Matt Shapiro, Josef Schenker, and Brendan McLaughlin discuss how Section 101 challenges have evolved over time at the ITC, and how this issue may be litigated differently before the Commission than in district court patent litigation. They also provide an update on recent proposed litigation that may affect Section 337 proceedings.

Ropes & Gray's podcast series Talkin' Trade explores the world of Section 337 unfair import investigations at the U.S. International Trade Commission. On this episode, IP attorneys Matt Rizzolo, Matt Shapiro, and Brendan McLaughlin are joined by special guest Scott McKeown, a leading PTAB litigator, to discuss the issues arising when a patent asserted in an ITC investigation also has its validity challenged at the PTAB—including whether and to what extent the respective agencies defer to each other's decisions or schedules, and what considerations are important for litigants to keep in mind to get the optimal resolution. 

Ropes & Gray's podcast series Talkin' Trade explores the world of Section 337 unfair import investigations at the U.S. International Trade Commission. In this episode, IP litigation partner Matt Rizzolo and associates Matt Shapiro, Kathryn Thornton, and Brendan McLaughlin explore the statute's importation requirement, including the Federal Circuit and Commission's interpretation of a phrase in Section 337—“articles…that infringe”—that has been the subject of confusion and debate in recent years.

Ropes & Gray's podcast series Talkin' Trade explores the world of Section 337 unfair import investigations at the U.S. International Trade Commission. In this episode, IP litigation partner Matt Rizzolo and associates Matt Shapiro, Brendan McLaughlin, and Kelley Chandler break down and explain the ITC's domestic industry requirement.

Ropes & Gray's new podcast series Talkin' Trade explores the world of unfair import investigations at the U.S. International Trade Commission. In this episode, IP litigation partner Matt Rizzolo and associates Matt Shapiro and Brendan McLaughlin introduce listeners to Section 337 Investigations at the ITC and explain how the ITC is a powerful tool in intellectual property disputes.