While limited exclusion orders remain the default remedy, a recent Initial Determination issued by ALJ Bullock is a reminder that the ITC may issue a general exclusion order if it finds a limited exclusion order would be insufficient to protect a complainant’s domestic industry.
The ITC recently modified a previously issued remedial order such that certain of the Respondents’ redesigned products were not excluded from importation.
While the ITC rarely issues general exclusion orders, two recent cases illustrate the importance of seeking such relief in appropriate circumstances.
Commission Continues Use of Standard Certification Provision Even When Finding That All Accused Products Infringe
By: Daniel Kazhdan, Ph.D. and Vishal Khatri– In a recent Opinion, the Commission continued the practice of including its usual certification provision in the Limited Exclusion Order despite the complainant’s request for a more restrictive certification provision.
The ITC issued an Opinion finding a violation of Section 337 and issuing a general exclusion order and cease and desist orders. Of note, the Commission clarified that the “industry” for unregistered trade dress need not be defined by the subheadings in 19 U.S.C. § 1337(a)(3) like they are in a patent-based or registered trademark-based investigation.
In Cisco Systems, Inc. v. ITC, No. 16-2563 (Fed. Cir. Sept. 28, 2017), the Federal Circuit affirmed the Commission’s exclusion order entered in Certain Network Devices, Related Software and Components Thereof (I), Inv. No. 337-TA-944.