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ARTICLE · 08 SEPTEMBER 2023

Would Congress' Proposed ITC Reforms Thwart NPEs?

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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.

United StatesIntellectual Property

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

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