Federal Circuit to Review Decision Limiting ITC Authority

According to Law360, the decision in question concluded that the ITC has no authority to impose exclusion orders in induced infringement cases when a product does not infringe before being imported, but only once it is in the United States. Intellectual Property partner Kecia Reynolds says a dissenting opinion from Judge Jimmie Reyna highlights a loophole created by the December decision—the ITC would be unable to block infringing imports where companies bypass the commission’s oversight by simply deactivating infringing features at the time a product enters the U.S.

“The dissent pointed out the loophole that the panel’s decision created and how taking induced infringement cases away from the ITC’s jurisdiction is going to severely undercut the ITC’s ability to fulfill its mandate to regulate trade and stop infringing goods from coming into the U.S.,” she said. “I think parties are shying away from bringing method claims at the ITC because this is in flux.”