If someone imports something that violates a U.S. patent, copyright, or trademark, the International Trade Commission investigates. If they find infringement, they can stop the products from being imported. You don’t need to prove that the infringement caused harm. The process involves filing a complaint, an investigation, and a decision by a judge. The commission also has a lawyer who represents the public interest in the investigation. The rules for the investigation are like the rules for a civil court case. If a company believes their intellectual property rights have been violated by imports, they can file a complaint with the International Trade Commission. The complaint will be reviewed by an administrative law judge, who will hold a formal hearing to decide if the violation occurred. If the judge finds a violation, the commission can issue an order to stop the imported products from entering the U.S. and tell the companies involved to stop their actions. The orders can be enforced by Customs and Border Protection. Appeals of the commission’s orders are heard by the U.S. Court of Appeals for the Federal Circuit, and the president can also stop the orders from being carried out. If you file a complaint, remember that it will become public information. If you need to file a paper document with the commission, you have to submit an original and a certain number of copies, depending on the situation. The documents should not be stapled or hole-punched. You also need to fill out an EDIS cover sheet online. Evidentiary documents must meet certain rules and can be filed electronically in some cases. Electronic documents are “signed” with a password-protected protocol. All documents need to have specific information and be accompanied by a certificate of service. If you want a date-stamped copy of a document, you need to provide an extra copy and a letter requesting it. If you file a document electronically, you will receive a notice of electronic filing via email. If you want to keep some parts of your complaint private, you need to also provide a version that can be seen by the other side and the commission. Make sure to serve the other side with important documents like patent history and claim charts. Any confidential documents must be filed in a specific way and only certain people can access them. If you need confidential information from someone else, you have to follow the rules to make sure their information stays private too. Basically, when you file a document with the commission, you have to give a copy to the other parties involved in the case. If you file a complaint and also ask for temporary relief, you have to give a copy to the commission and the embassy of any foreign companies involved. If the commission starts an investigation, they will give the complaint and notice of investigation to the companies involved and their embassies. For other documents, you have to give two paper copies to the judge, and there are specific rules for how to give documents to the other parties involved in the case. If someone files a complaint, the OUII looks at it and decides if it’s good enough. The commission then decides within a month whether to start an investigation. If they do, they tell everyone involved and publish a notice. If they don’t, they tell everyone too. Investigations follow rules like a court case, and the judge makes rules for how things will happen. These rules help keep things organized. If someone has a problem with a patent, they can make an agreement with the person they have a problem with. They can ask the commission to stop the investigation because of the agreement, but the commission has to make sure it’s okay first. They can also ask to be part of a program to help them work out their problem without going to court. It’s confidential and doesn’t cost anything. If they have to go, it won’t take more than one day. At the commission, you have to apply for a subpoena instead of just getting one. The judge will decide if it’s necessary. There will also be hearings in Washington, D.C. to look at the evidence. The judge will make a decision within 16 months, and it can be reviewed by the commission. If someone has a complaint, they can ask the commission for temporary orders to stop the other party from doing something during the investigation. To do this, they have to file a motion with the commission, along with a written explanation and evidence to support their request. If the commission decides to move forward with the temporary orders, the case will go to a judge for a decision. The judge will have a hearing, look at the evidence, and then make a decision. The commission will review the judge’s decision and decide whether to grant the temporary orders. If someone has a patent and someone else is using it without permission, the patent owner can ask the court to make the other person stop using it temporarily until the case is resolved. The court will look at four things: whether the patent owner is likely to win the case, whether they will be hurt if the other person keeps using the patent, whether it’s fair to stop the other person from using it, and whether it’s good for the public to stop them. The court will also assume that the patent is valid unless the other person can prove otherwise with clear and strong evidence. If the other person can show that the patent might not be valid, then the patent owner has to prove that it is. This decision is not final and doesn’t mean the patent is definitely valid or not. It’s important for the patent owner to have a lawyer who knows about patent law to help with this process. If a party disagrees with an Initial Determination (ID), they can ask the commission to review it. The commission will decide whether to review the ID, and if they do, they can affirm, change, or cancel parts of it. If they don’t review it, the ID stands. U.S. Customs and Border Protection has procedures for carrying out exclusion and seizure orders for infringing articles. There are two types of exclusion orders; one applies to all infringing articles, and the other only applies to infringing articles from a specific company. The ITC can issue a cease and desist order to stop unfair acts and prevent infringing imports from coming into the U.S. The president has 60 days to review the order and can veto it. If the order is not vetoed, the imports are banned and the complainant can get the bond money. Dealing with patent infringement at the ITC can be complicated, so experts may be needed to explain the technology and process involved. Clayton J. Joffrion is a lawyer who has been practicing for over 21 years in Florida and Louisiana. He focuses on imports, trade barriers, and foreign laws.
Source: https://www.floridabar.org/the-florida-bar-journal/import-patent-infringement-the-337-investigation/
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