By: Yury Kalish and Vishal Khatri  The ITC recently announced that, by operation of law, David S. Johanson became Chairman of the Commission on June 17, 2018. The announcement provides an opportunity to review the rules related to the organization of the Commission and the chairmanship and to highlight the bipartisan nature of the Commission.

19 U.S.C. § 1330 describes the organization of the Commission and how the Chairman and Vice Chairman are selected. The ITC is composed of six Commissioners that are appointed by the President. No more than three Commissioners can be from the same party at any given time. Chairmanship and vice-chairmanship of the Commission operate on a two-year term and the President designates the Chairman or Vice Chairman from the eligible Commissioners – i.e., commissioners form a different political party than the preceding Chairman. Also, the Vice Chairman cannot be from the same political party as the Chairman. If the President does not designate anyone , the eligible Commissioner who has the longest period of continuous service as a commissioner automatically becomes the Chairman.

Johanson is the senior Republican on the Commission and in the absence of a Presidential designation, he became Chairman by operation of law since outgoing Chairman Rhonda K. Schmidtlein, is a Democrat. Chairman Schmidtlein became the Chairman on January 13, 2017, in the middle of an existing two-year chairmanship term which expired on June 16, 2018. She will continue as a commissioner at the ITC until her term expires on December 16, 2021.

Although Johanson is a Republican, he was nominated to the ITC by President Barack Obama since the bipartisan nature of the ITC Commission required the position to be filled by a Republican.

Prior to becoming Chairman, Johanson served as Vice Chairman of the Commission from August 11, 2016. He earned his Bachelor of Arts degree from Stanford University, a Master of Philosophy degree from Cambridge University, and a Juris Doctor degree from the University of Texas School of Law. After working as a staffer for several members of the House of Representatives, Johanson worked as an international trade law attorney in private practice. He then returned to Congress as International Trade Counsel on the Republican staff of the Committee on Finance of the U.S. Senate, with a broad range of responsibilities.

Takeaway

In an attempt to maintain neutrality, the statute governing the Organization of the ITC Commissioners is based on promoting a bipartisan approach to its governance. In the most recent demonstration of this principle, David S. Johanson (the senior Republican Commissioner) became the new Chairman of the Commission on June 17, 2018 by operation of law, succeeding Democrat Rhonda K. Schmidtlein.

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Vishal Khatri is an intellectual property lawyer with more than 15 years of experience representing clients in high stakes, bet-the-company patent litigation and procurement matters around the world. He routinely represents clients in matters before U.S. district courts, the United States International Trade Commission (ITC), and the United States Patent and Trademark Office (USPTO), including Inter Partes Review (IPR) proceedings before the Patent Trial and Appeal Board (PTAB).