Would Congress' Proposed ITC Reforms Thwart NPEs?

Nonpracticing entities have been increasingly active at the U.S. International Trade Commission in recent years, bringing a record 32% of Section 337 Investigations in 2022.¹

In a sense, the rise of NPEs at the ITC was by design. When Congress amended Section 337 in 1988, it did so to allow intellectual property rights-holders that do not manufacture products to obtain remedies, specifically identifying "inventors, universities, [and] startups" as NPEs deserving of that opportunity.²

However, the current rise has concerned commentators, who argue that the ITC has departed from its roots protecting businesses with a meaningful domestic industry.

In its current effort to track complaints filed by NPEs, the ITC now breaks them down into two categories: Category I NPEs and Category II NPEs. The first category appears to refer to entities that led to the justification of the 1988 amendment, again referring to inventors, universities and startups.³ As for Category