A Mania for Do-Overs

Attorneys who argue for defendants before the International Trade Commission didn’t wait long to take advantage of the U.S. Court of Appeals for the Federal Circuit’s game-changing ruling in Kyocera Wireless Corp. v. ITC. Just two weeks after the mid-October decision stating that the ITC has been overstepping its authority, two companies had already filed petitions to modify or throw out now-questionable orders banning the import of electronics products.

ITC practitioners expect more to come. “If most of the products being excluded by an order [are] imported by downstream manufacturerswell, those orders are just crying out for a petition to the commission for modification or rescission,” says Paul Brinkman, a partner at the Washington, D.C., office of Alston & Bird. In a surprise ruling, the Federal Circuit held that the commission had exceeded its authority under section 337 of the Tariff Act of 1930 in extending its ban to cover downstream manufacturers that were not named as respondents in a petition alleging patent infringement of a particular component.