Amendments to the rules of the U.S. International Trade Commission that went into effect in August have patent owners grumbling.
Plaintiffs who want to file a case to stop products that infringe a U.S. patent from being imported into the United States now have to meet a higher hurdle that will add to up-front costs: They must file a chart documenting infringement allegations for every independent patent claim asserted, rather than just for one claim. Adding claims later in a case is procedurally more difficult at the ITC than in U.S. district court, says Bas de Blank, who coheads Orrick, Herrington & Sutcliffe’s ITC practice, so filers will be motivated to meet that up-front requirement. “It could reduce, if not the number of investigations filed . . . at least . . . the number of claims filed in each investigation,” he says. The ITC believes the chart will encourage early settlement or resolution of disputes; complainants already have “to file a nonfrivolous complaint.”
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