Cato Analyst Wants to Curb ITC Role in Patent Enforcement
It would be "great" to abolish the ITC, or curb its use of the import injunctive power, or remove the agency from the patent infringement process, said William Watson, a trade policy analyst with Cato's Herbert A Stiefel Center for Trade Policy Studies in a blog post. Another "modest possibility," he said, is to require that decisions whether infringement has occurred be made by a court, but then allow a victorious plaintiff to seek an import ban from the ITC. He said that proposal was considered by the U.S. Trade Representative decades ago but rejected by Congress.
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"But if federal courts are making infringement determinations, why not just give those courts the power to issue import bans?" Watson asked. The most common argument in favor of ITC patent litigation is that the agency is quick and effective at making infringement determinations. Without that role, is there really anything left for the ITC?"
Watson said it's "quite likely," given the Supreme Court's clear warning regarding overuse of injunctions in patent infringement cases, that there will be an attempt through regulation or statute to create more precise rules for determining the basis for import bans in patent infringement cases. The White House also argued that the ITC should follow the same standard as federal courts before issuing an import ban.
"Maybe the trouble caused by the ITC would be worthwhile if the agency also provided some legitimate benefit, but it doesn't," Watson said. "No other country on earth has a specialized patent court for imports" and "ITC import bans were condemned decades ago as inconsistent with international trade rules. Patent policy is complicated enough without the ITC's purely disruptive influence."