The ITC recently concluded a general exclusion order was appropriate because it was nearly impossible to identify the source of infringing products.
The Federal Circuit held that once the ITC institutes an investigation, it cannot reconsider the adequacy of the complaint. So in the case of a defaulting respondent, the Commission has to rule against them and go to the relief phase.
A recent Commission opinion serves as a reminder to litigants of the public interest analysis conducted by the ITC before determining whether to issue remedial orders against a respondent.
The Federal Circuit held that the ITC was required to consider whether to rescind a civil penalty for infringing a consent order on a now-invalidated patent, but left open the possibility that the ITC could refuse to rescind the civil penalty.
Civil penalties for violating an ITC order can be as much as $100,000 per day, even for de minimus violations. In this case, ALJ Pender determined that Respondent owed $20,000 in civil penalties for an accidental re-sale of returned dimmable compact fluorescent bulbs.
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.