Asserting Method Patents At The ITC After Suprema—Same As It Ever Was?

The Federal Circuit's Suprema decision no doubt strengthens the hands of patent holders at the U.S. International Trade Commission (ITC). Based on this en banc ruling, patentees can again assert method of use claims for indirect infringement, even when direct infringement occurs after importation. But before celebrating too much, litigants considering the ITC should ask themselves if things are truly back to normal. Have things really returned to past practice, the "same as it ever was"? Or should patentees recognize that substantial risks remain, even with respect to method claims, when alleging direct infringement of those patents? In this article, Finnegan attorneys  Eric J. Fues and Maximilienne Giannelli  address these questions through an analysis of the Suprema decisions, the underlying administrative law judge (ALJ) and ITC decisions, and the ITC's vastly different ruling, on a similar record, in the Certain Electronic Devices investigation.