By Levent Herguner and David Maiorana – On March 16, 2019, the ITC implemented a temporary change to filing procedures in light of the global COVID-19 pandemic.  The accompanying notice stated that the ITC will temporarily waive and amend its rules that require the filing of paper copies, CD-ROMs, and other physical media in section 337 investigations.  All filings, including new complaints, will be done electronically instead.  This is the first time the ITC has permitted electronic filing of new complaints.  Waiver and amendment of these rules will mitigate disruption to section 337 investigations in the event that the USITC building becomes inaccessible.

Citing Section 201.4(b) of the Commission’s Rules of Practice and Procedure, the ITC noted that it may amend, waive, suspend, or revoke Commission rules for “good and sufficient reason” if the rule is not a matter of procedure required by law.  As filing procedures are not required by law, the ITC determined that there was good and sufficient reason to waive and amend these rules to require the electronic filing for all documents.

These measures add to the rapid changes implemented through the ITC’s response to the COVID-19 outbreak.  The ITC previously announced that it would closely monitor the situation and post updates on its website.  The ITC also ordered ALJs to postpone any hearings scheduled in the next two months, and limited building access only to visitors who have a statutory matter.  Further, it was announced that all ITC employees would begin teleworking full time starting March 17, 2020.

The latest notice also adds that service of public documents will be moved to electronic means by posting the documents on EDIS.  Staff in the Office of the Secretary, Docket Services Division, will provide email notification to the parties of the availability of the validated document on EDIS.  This waiver and amendment is effective immediately and until further notice, which will be provided in a subsequent Federal Register notice.

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Dave Maiorana is a trial lawyer with a notable combination of significant experience as a USPTO examiner along with 20 years litigating complex intellectual property matters. He has represented clients as both plaintiffs and defendants around the country and in the ITC. Dave has experience in diverse technology areas, including teeth whitening, diapers, fem care products, self-inflating tires, oxygen concentrators, flash memory, and digital cameras.