the dam of the U.S. border through which circumvention
of Section 337 will ensue, thereby harming holders of U.S.
patents,” he wrote.
The provocative dissent hit a nerve. In May the Federal
Circuit agreed to vacate its order and hear the case en banc.
IP attorneys are watching closely. Aside from the implications for future ITC investigations, this case has again
called the jurisdiction and reach of the ITC into question.
If the full court agrees that the ITC had overreached its
authority, it might fall to Congress to amend the statute
empowering the I TC so the loophole can be closed, de Blank
says. But if the courts and Congress curb its authority, the
ITC could become less relevant, and its power will diminish.
THIS ISN’T THE FIRST TIME LAWYERS HAVE WONDERED
whether the ITC could be losing its luster. In 2013 some
raised the issue after the Obama administration vetoed
an ITC ruling that would have banned the importation of
Apple Inc.’s older iPhones and iPads that infringed one of
Samsung Electronic Co.’s standards-essential patents.
But IP lawyers quickly declared the veto an anomaly,
Ultimately, the damage to the agency’s influence was
limited. “The ITC appreciates and learns from guidance it
gets from the U.S. trade representative and the president,”
says Rosenman. “It continues to be busy and is still a go-to
venue for disputes for all kinds of IP.”
In fact, even with some jurisdiction questions still up in
the air, the ITC may wield more influence on intellectual
property in the future. Nonpatent IP cases related to trade
secrets, copyrights and trademarks are increasingly find-
ing their way to the ITC, according to Rosenman.
“The agency may be known for high-profile disputes
between companies like Apple and Samsung,” he says.
“But it isn’t just a patent forum anymore.” ■
“Licensing companies may have a
harder time at the ITC now,” says an