DuetsBlog Collaborations in Creativity & the Law

The Other Border Patrol

Posted in Mixed Bag of Nuts

With all the flaming rhetoric going on these days relating to immigration, refugees, and border fences, I thought now might be a good time to introduce (or reintroduce) the world to a heavy hitter in the intellectual property border patrol:  the International Trade Commission.  I suspect few people know specifically what the ITC can do, or  the broad implications of the ITC’s power.  Please consider this a free introductory course.

Pursuant to 19 U.S.C. sec. 1337, the ITC is given the authority to investigate, among other things, alleged infringement of various intellectual property rights by importers.  The most common investigations by the ITC generally include patent or trademark infringement.  The proceedings are similar to litigation in the courts, but they move substantially faster and do not rely on juries for decisions.  A possible result of an investigation is that importers will be barred from continuing to import products which are deemed to infringe any properly established rights.  This is merely a high-level overview of how the process works, but based on the end result (barring imports), you can easily see how significant the ITC is.  In proper cases, it can simultaneously eliminate a market for a producer and eliminate a product for consumers.

The Federal Circuit recently considered a very important case relating to the ITC power which very few people are actually talking about.  However, the implications of the case are very important.  In the recently decided ClearCorrect case, the Federal Circuit held that the ITC did not have the authority to bar importation of digital data.  The Federal Circuit based its decision the grounds that the ITC was only allowed to bar importation of “articles,” which the Federal Circuit construed to mean “material things.”

It remains to be seen whether the Federal Circuit decision will ultimately result in a good or bad result.  On the one hand, as our digital and information economy continues to expand, it seems that barring digital imports will eventually be a necessary component of protecting intellectual property rights within the U.S. market.  On the other hand, I could easily see such a task over-burdening the ITC and giving the ITC more power now than Congress envisioned.  But this is one of those interesting legal issues where it will pay to stay tuned.  It’s possible that Congress will elect to expand ITC authority, or even come up with an entirely new mechanism for dealing with the problem.