In two recent orders, the Commission denied respondents’ requests for entry into its Early Disposition Pilot Program (100-day Pilot Program).  It has now been over two years since the ITC issued its proposed rulemaking for the program, and such proceedings remain rare.

100-Day Pilot Program

The 100-Day Pilot Program is intended “to test whether earlier rulings on certain dispositive issues in some section 337 investigations could limit unnecessary litigation, saving time and costs for all parties involved.”[1]  It is pending codification pursuant to a notice of proposed rulemaking issued in September 2015.  Currently, the process is initiated by the Commission in the notice of investigation.  The ITC proposed broadening the pilot program in its notice of proposed rulemaking by allowing administrative law judges to institute proceedings for early determination of dispositive issues.  Pursuant to the Commission’s notice of investigation, the ALJ issues a procedural schedule including expedited fact finding and an evidentiary hearing.  Ordinarily, the hearing will result in an initial determination within 100 days of the institution of the investigation.  Parties may then petition the Commission for review of the ID within five days of service of the ID.

Although the Commission has stated that the 100-Day Pilot Program is the “latest action in its ongoing efforts to improve its section 337 investigation procedures and meet its obligation to complete investigations expeditiously,” its use remains somewhat rare.  Of the approximately 200 Section 337 investigations since the 100-Day Pilot Program began, only six have been placed in the program—two based on a respondent’s request and four sua sponte.  In most circumstances, the Commission denies entry into the pilot program because the issue is not dispositive of the entire investigation or is too complex to decide in 100 days.  Two recent denials of entry into the program demonstrate the uphill battle a respondent has in getting such a proceeding instituted.

Certain Shaving Cartridges, Inv. No. 337-TA-1079

In Certain Shaving Cartridges, respondents requested that the 100-Day Pilot Program be instituted on the issue of importation.  They contended that the information relied upon by complainant to demonstrate importation of the accused products is incorrect and, that the accused products are actually manufactured and assembled in the United States.  Although lack of importation would be dispositive of the investigation, the Commission denied entry into the pilot program and stated that “[t]he Request relates to issues that may be suitable for an early motion for summary determination as they may not require the Administrative Law Judge to hold a hearing or to resolve disputed issues of fact.”

Certain Insulated Beverage Containers, Inv. No. 337-TA-1084

In Certain Beverage Containers, a few but not all of the proposed respondents requested that the 100-Day Pilot Program be instituted on the issue of importation.  The Commission determined not to use the pilot program because it would not be dispositive with respect to all respondents and would unduly delay resolution of the entire investigation.

Takeaway

ITC respondents have successfully used the 100-Day Pilot Program for early adjudication of dispositive issues.  But such cases remain exceedingly rare.  A proposed respondent seeking institution of a 100-Day Pilot Program proceeding should demonstrate that the issue in question is dispositive of the entire investigation, and that it is not too complex to decide in 100 days.  Respondents should also be prepared to go forward with a full investigation as it is unlikely that the Commission will grant the request.  Conversely, a complainant faced with such a request should show that the issue is not actually dispositive or is too complex for the pilot program.

[1] https://www.usitc.gov/press_room/featured_news/pilot_program_will_test_early_disposition_certain.htm

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Dave Maiorana is a trial lawyer with a notable combination of significant experience as a USPTO examiner along with 20 years litigating complex intellectual property matters. He has represented clients as both plaintiffs and defendants around the country and in the ITC. Dave has experience in diverse technology areas, including teeth whitening, diapers, fem care products, self-inflating tires, oxygen concentrators, flash memory, and digital cameras.