As noted in our May 16, 2016, post, the ITC will be conducting a live Section 337 hearing before the Commission for the first time in nearly a decade.  In a notice issued on October 11, 2016, the Commission indicated that the November 17, 2016, hearing will be limited to the issues of laches, contributory infringement, and the public interest.  The Commission also provided details regarding the format of the hearing process:

The hearing will consist of two panels.  The first panel will be limited to the parties (i.e., complainants, respondents, and the IA), who will be given an opportunity to comment on the issues identified above based upon the record in this investigation.  A representative for each of the private parties and the IA may present opening remarks not lasting more than 10 minutes.  After the opening remarks, the Commissioners may ask questions of the panelists.  This is a public hearing; confidential business information (“CBI”) should not be discussed.  A party, however, can draw the Commission’s attention to CBI, if necessary, by pointing to where in the record the information can be found.  The name and contact information of the parties’ respective representatives must be filed with the Office of the Secretary by Friday, November 4, 2016.  The first panel will be from 10 am to 11:30 am.

The second panel will be limited to public interest issues.  In particular, the Commission will hear presentations concerning the appropriate remedy (if any) and the effect that such remedy would have upon the public interest.  Government agencies, public-interest groups, and interested members of the public may make oral presentations on the issues of remedy and the public interest.  Parties to the investigation are expected to present any public interest comments during the first panel and will not participate in the second panel.  The panel will be conducted in like manner as the first panel, i.e., an opportunity will be given for opening remarks, not lasting more than 10 minutes, and Commissioners may ask questions of the panelists. The second panel will begin at 11:30 am.

After the conclusion of the hearing, no additional written submissions or arguments will be permitted.

Certain Lithium Metal Oxide Cathode Materials, Lithium-Ion Batteries For Power Tool Products Containing Same, And Power Tool Products With Lithium-Ion Batteries Containing Same, Inv. No. 337-TA-951, October 11, 2016 Notice at 3-4.  The Commission further indicated that “[w]ritten requests to appear at the Commission hearing with respect to the second panel (i.e., public interest only) must be filed with the Office of the Secretary by November 1, 2016” and that participants should “provide a one-page synopsis of their oral presentations indicating what position they have on the public interest.”  The synopsis will be placed in the public record.

The additional detail provided by the Notice suggests that the Commission is prepared to give the parties and the interested public a significant opportunity to advocate their positions and demonstrate to the Commission the value of such an oral argument.  One issue that may be addressed during argument on public interest and remedy is the Commission’s current split with respect to whether a cease and desist order should issue on a finding of a violation of Section 337 even if domestic inventory of infringing products has not been shown.  Jones Day will continue to monitor the case and will provide updates as they develop.

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Blaney Harper, who co-chairs the Firms intellectual property ITC practice, focuses on strategic patent litigation representing electronics, software, and information technology companies in matters such as patent enforcement in United States District Courts and the International Trade Commission (ITC). Blaney also represents and counsels clients concerning patent portfolio development and patent prosecution and appeal, including Inter Partes Review, in the USPTO. Blaney co-chairs the Firm's ITC practice and is the IP Practice Coordinator for the Washington Office.