Daniel Kazhdan, Ph.D.Vishal KhatriWhile the ITC rarely issues general exclusion orders (“GEO”), two recent cases illustrate the importance of seeking such relief in appropriate circumstances. 19 U.S.C. § 1337 gives the Commission authority to enjoin the importation of unlawful articles. Presumptively, the Commission’s exclusion order “shall be limited” to the specific respondents that the Commission finds violated Section 337. Where necessary, though, the Commission is authorized to issue a “general exclusion” order. § 1337(d)(2).
A general exclusion order prohibits all importations of excluded goods, even from non-parties. (Those enjoined non-parties are permitted to appeal the Commission’s order to the Federal Circuit. See LSI Computer Sys., Inc. v. ITC, 832 F.2d 588, 588 (Fed. Cir. 1987).) In addition to showing a violation of Section 337, to obtain a general exclusion order the Commission must determine a general exclusion order is necessary to prevent circumvention of an exclusion order limited to products of named persons or there is a pattern of violation and it is difficult to identify the source of infringing products.
In just the last few months, the ITC has issued two general exclusion orders. In In re Certain Mobility Device Holders and Components Thereof, USITC Inv. No. 337-TA-1028 (Comm. Op., Feb. 22, 2018), the Commission found that that a general exclusion order was “necessary to prevent circumvention of an exclusion order limited to products of named persons and because there is a pattern of violation of section 337 and it is difficult to identify the source of infringing products.” Like all exclusion orders, this order was subject to a 60-day presidential review period. The President did not disapprove of the order, so the general exclusion order is now in place. And only a few weeks ago the Commission entered another general exclusion order, this one is still pending presidential review. See In re Certain Arrowheads with Arcuate Blades & Components Thereof, USITC Inv. No. 337-TA-1033 (Comm. Op. Apr. 12, 2018).
In certain circumstances, the Commission can issue a general exclusion order, which, unlike the more common limited exclusion orders, are not limited to the named parties. Complainants should consider asking for general exclusion orders if they believe that is necessary to prevent circumvention of a Commission order or if there is a pattern of violation and it is difficult to identify the source of the infringing products. These recent cases show that the Commission will enter general exclusion orders if the complainant provides the necessary proof.