ABSTRACT :: The United States International Trade Commission has recently experienced a dramatic increase in patent infringement investigations under § 337 of the Tariff Act of 1930. In fact, the number of patent enforcement actions submitted to the ITC has nearly doubled in the last five years. Patent holders are selecting this forum because of its speedy proceedings and its ability to award broad exclusion orders. This rise in ITC patent litigation, however, has revealed weaknesses in the structure of § 337. In broadening the provision to facilitate the enforcement of patent rights, Congress failed to consider the impact of this change on technological innovation and on the coherence of the patent system. In particular, Congress did not clarify the relationship between § 337 and the Patent Act, thereby jeopardizing the uniformity of the patent system. Nor did it consider the effect that patent- related exclusion orders would have on innovation and on strategic behavior. This Article recommends that Congress harmonize ITC patent law with the Patent Act and related federal precedent, or alternatively, abolish § 337.
July 2015, Vol. 67, No. 4
Dru D. Stevenson & Nicholas J. Wagoner, Bargaining in the Shadow of Big Data
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