Protect Domestic Industry, Not Private Interests

The International Trade Commission now stands as the favored venue for companies, domestic and foreign alike, to obtain injunctions while avoiding the requirements imposed by eBay v. MercExchange, 547 U.S. 388 (2006) – the decision setting forth the current test to determine whether an injunction based on patent infringement should be issued. But the ITC was not intended to be an intellectual property court. Section 337 of the Tariff Act of 1930, which permits the ITC to investigate alleged unfair import practices (i.e., importing products that infringe U.S. patents), too frequently fails to protect domestic jobs and industry. Congress enacted Section 337 (and its predecessor) to prevent domestic industry from being damaged or destroyed by unfair trade practices abroad. Although Section 337 still serves this purpose in certain instances, many times the issuance of an exclusion order harms U.S. industry, albeit not that of the complainant. Section 337 should be amended