Section 337 Update: Prosecution Bar Denied For Failure To File Timely Motion

During the course of a Section 337 investigation before the US International Trade Commission ("ITC"), a party's confidential information is normally disclosed to opposing counsel and experts for the other side as part of the discovery process, under the terms of a Protective Order governing use of confidential information.  Due in part to the complexity of current technology, it is not uncommon for a party's litigation counsel or expert witnesses to also represent or assist the party in patent prosecution matters.  Consequently, to avoid the risk that opposing counsel or experts may use confidential information disclosed in an ITC investigation during subsequent or concurrent patent prosecution, a party may seek to amend the governing Protective Order to include a prosecution bar.