Declining investments over the years leading up to the Complaint can still qualify as “significant” and therefore met the economic prong of the DI requirement, especially when complainant maintains ongoing qualified activities with respect to the relevant products.
Economic investments and activities related to patented pre-commercial and non-commercial articles can meet the ITC’s domestic industry requirement.
The ITC recently clarified that 19 U.S.C. 1337(a)(2) does not require that a domestic industry product be sold before a complaint is filed for a domestic industry to exist.
The ITC permits a domestic industry to be based on any claim of an asserted patent even if the claim defines an article that is different from the investigated article of commerce.
Economic Prong of Domestic Industry Requirement Is Not Evaluated in Relation to Complainant’s Overall Investments
The economic prong can be satisfied even when the percentage of complainant’s domestic investments in the patented products is small in relation to its overall domestic investments.
In a recent order, ALJ Bullock indicated that it is unsettled whether evidence related to unreleased products can be used to establish that a domestic industry exists.