ITC ALJ Potentially Weakens R&D-Based Domestic Industry

On April 26, 2016, International Trade Commission ("ITC") Administrative Law Judge ("ALJ") Lord issued the public version of her final initial determination ("ID") in Certain Electric Skin Care Devices, Brushes and Chargers Therefor, and Kits Containing Same, ITC Inv. No. 337-TA-959 ("Certain Electric Skin Care Devices"). While the ALJ found that a domestic industry exists, she determined that expenditures relating to research and development cannot be counted toward satisfaction of subsections (A) or (B) of the domestic industry requirement—a holding that could potentially weaken trade protections for U.S. industry.

Statutory Framework

The ITC has jurisdiction over cases involving "industr[ies] in the United States, relating to the articles protected by the patent, copyright, trademark, mask work, or design concerned, exists or is in the process of being established." 19 U.S.C. § 1337(a)(2). This requirement is met only if there is: (i) significant investment in