Fall ITC Commission Affirms Procedural Correctness Of “100 Day Procedure” For Determining Case Dispostive Issues and Affirms ID Finding of The Domestic Industry
Investigation No. 337-TA-874 was the first proceeding in which the ITC instituted a “100 Day Proceeding” to determine what it considered to be a case dispositive issue of whether or not the Complainant (“the Patent Owner”) met the economic prong of Domestic Industry. As filed and as amended the Complaint alleged that fifteen Respondents, who were predominantly in the wine and spirits industry, infringed two patents of the Complainant relating to laminated boxes into which products of the Respondents were placed and then imported into the United States. I and my group represented one of the Respondents. The 100 Day Proceeding was instituted by the ITC because it felt it was a time saving procedure in which to address a case dispositive issue. In this case the issue was whether or not the Complainant met the economic prong of the Domestic Industry requirement.
The 100 Day Proceeding, which meant that at the conclusion of the 100 Days the Administrative Law Judge was required to issue an initial determination (“ID”), put a great deal of pressure on all of the Respondents. Discovery, which is always an accelerated procedure at the ITC, was even more accelerated under this “100 Day Procedure.” A two day trial was held on the issue of whether or not the Complainant met the economic prong of Domestic Industry. At the conclusion of the 100 Day period, the Administrative Law Judge issued an ID finding that the Complainant had not met the economic prong of the Domestic Industry requirement either by showing that there was an industry in being or by showing that the Complainant was in the process of farming such an industry. However, at the same time, the Administrative Law Judge stated that he considered the “100 Day Procedure” to be in violation of the ITC rules and the Administrative Procedure Act, among other things, and that he considered the procedure to be null and void. Nevertheless, he also held that in the event the Commission found its procedure was not violative of any rights of the Complainant, that there was no Domestic Industry and hence, no violation of Section 337.
As a result of the ID from the Administrative Law Judge, the Complainant filed a Contingent Petition and Respondents filed a Contingent Petition and the OUII filed a Contingent Petition. Each of these parties then replied to the other parties’ Contingent Petitions. Within the 30 day period within which the full Commission must act, the Commission determined that the “100 Day Proceeding” was entirely proper, that it had the jurisdictional ability to direct such a proceeding and confirmed the ID so far that it found no Domestic Industry and hence, no 337 violation.
Where the case goes from here is an open question. However, this “100 Day Procedure” is one which Complainants at the ITC can expect to have applied to their cases in situations in which the ITC believes that there is a case dispositive issue which can be decided within this 100 Day Proceeding.
- By Albert L. Jacobs, Jr. Chair, ITC Practice Group