ITC Denies Request for Early 100-Day Program as Too Complex

February 19, 2018

Since 2013, the U.S. International Trade Commission (ITC) has designated certain investigations where there is an issue that could resolve the entire dispute as appropriate for a 100-day early resolution.

To date, the ITC has assigned to the program approximately seven investigations, addressing issues such as domestic industry, importation, patent-eligible subject matter under the Alice decision, and standing.

A patent infringement complaint concerning microfluidic systems was submitted to the ITC on Jan. 11, 2018. On Jan. 29, the proposed respondent submitted a request seeking to have the investigation placed into the ITC’s Early Disposition Pilot Program where certain issues are to be resolved by an administrative law judge within 100 days after an investigation starts. The bases for the request were that the claimed inventions allegedly were made by former employees of the respondent and, thus, actually were owned by the respondent — not the complainant. The request sought to have certain questions of inventorship, ownership and standing concerning the asserted patents addressed.

On Feb. 14, 2018, the ITC issued an order denying the request, noting that the “issues raised in [Respondent’s] Request — inventorship, ownership, and standing — may be too complex to be decided within 100 days of institution.”

The investigation was instituted by the ITC on Feb. 14, 2018, to be conducted in the normal course.

Takeaway: When a party seeks to have an ITC investigation included in the 100-day program, it should be certain to raise its narrowest, most powerful issue(s) to show that a case-dispositive issue is present and could be resolved in the expedited 100-day program.