By: Daniel Kazhdan, Ph.D. and Blaney Harper – With the recent end of the government shutdown, governmental agencies are back on line and the ITC is no exception.  Last Monday, the ITC issued Information on Resumption of USITC Operations which stated:

As of Saturday, January 26, 2019, the Commission received funding through February 15, 2019 and the period of the shutdown has ended.  The Commission will resume operations on the first business day, Monday, January 28, 2019, with the following caveats.  The USITC will NOT be accepting document filings until Wednesday, January 30, 2019, as it reschedules active cases and previously scheduled deadlines affected by the shutdown.  As a result, EDIS is operating in a read-only capacity.  Document filing has been disabled.  In general, the Commission has tolled all statutory and other investigative deadlines pending before it for up to the length of the shutdown.  However, specific schedules for each investigative proceeding, including those pending before an Administrative Law Judge, will be revised and new schedules posted.  We hope in a week or more for revised schedules to be finalized.  While EDIS will go live on Wednesday, January 30, 2019, the Commission requests that parties in specific proceedings wait until revised deadlines are scheduled to file documents in a proceeding.  We appreciate everyone’s patience as the Commission resumes operations.

The ITC gave itself two days to reschedule active cases, and January 30, 2019, was the first day that they started accepting document filings.  For existing cases, the ITC asked that parties “wait until revised deadlines are scheduled to file documents in a proceeding.”

As you might expect, the ITC has received a flurry of filings in the past week, and it has started issuing modifications to scheduling orders to address the prolonged shutdown.  In some instances, individual deadlines have been postponed by several weeks and in other instances, the Markman and/or evidentiary hearings have been postponed.

The full impact of the government shutdown is not known yet, but it is possible that 2019 will see fewer new investigations and that many of the investigations that were pending during the shutdown will receive extended target dates beyond the 16-months that has been common in recent years.

In addition, three new investigations have been filed in the past week.  Given how swiftly the ITC has resumed operations, it seems unlikely that these new investigators will be impacted in any way due to the shutdown.

Of course, this all assumes we don’t have another shutdown.  We will see come February 15, 2019.

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Blaney Harper, who co-chairs the Firms intellectual property ITC practice, focuses on strategic patent litigation representing electronics, software, and information technology companies in matters such as patent enforcement in United States District Courts and the International Trade Commission (ITC). Blaney also represents and counsels clients concerning patent portfolio development and patent prosecution and appeal, including Inter Partes Review, in the USPTO. Blaney co-chairs the Firm's ITC practice and is the IP Practice Coordinator for the Washington Office.