Recent statistics reflect that the ITC continues to be an attractive venue for IP litigation. FY 2019 had a decrease in the number of complaints filed but trends to-date in FY 2020, suggest minimal disruption in the number of filings due to COVID-19.
In a recent decision, the PTAB decided to institute an IPR despite that fact that a parallel ITC investigation was in its late stages. They reasoned that since ITC decisions are not binding on other forums, the ITC determination would not be enforceable as to the USPTO, and would not result in the cancellation of patent claims.
Last week the Federal Circuit held that, like patent decisions, ITC decisions pertaining to trademarks are not entitled to preclusive effect.
The ITC recently ruled that even if a respondent is estopped from raising certain invalidity challenges because it failed to raise them in a previously filed IPR, the Office of Unfair Imports Investigations Staff can raise those very same challenges during an ITC investigation.
Parties considering whether to pursue litigation in a district court or the ITC should know that service against a foreign respondent is easier at the ITC.
Normally, the FDA monitors the improper distribution of drugs, but the ITC might also enter the fray if complainants can demonstrate injury.