A few potential cases (and a percolating issue?) to watch at the ITC

On a recent episode of Ropes & Gray’s Talkin’ Trade podcast, my colleagues and I mentioned a few current developments at the International Trade Commission (ITC International Trade Commission) that we will be watching closely. Notably, Administrative Law Judge Cameron Elliot recently issued interesting orders in a few of his investigations, requiring the complainants in those cases to disclose information about their parent corporations (if any such parents exist).

But ALJ Elliot did not issue these orders for all of his cases—he issued them only for Inv. Nos. 1323 (Certain Video Processing Devices and Products Containing the Same), 1332 (Certain Semiconductors and Devices and Products Containing the Same), and 1340 (Certain Electronic Devices, Semiconductor Devices, and Components Thereof). He did not provide a specific reason as to exactly why he singled out these three investigations, but upon a closer look, the complainants in all three are non-practicing entities. One can assume that he does not feel that the publicly available information on the complainants allows him to know who exactly is standing behind the curtain, so to speak—which can be important for a variety of reasons, including evaluating conflicts.

In each investigation, ALJ Elliot’s disclosure
One of the primary objectives of the patent system.  In return for the government-granted right to exclude that is embodied in the patent, the inventor must disclose to the public through his patent the invention for which protection is sought.  Inventors unwilling to disclose their invention to the public may instead opt for trade secret protection.
order simply requires the complainant to “file a corporate disclosure
One of the primary objectives of the patent system.  In return for the government-granted right to exclude that is embodied in the patent, the inventor must disclose to the public through his patent the invention for which protection is sought.  Inventors unwilling to disclose their invention to the public may instead opt for trade secret protection.
statement identifying any parent corporation of Complainant and any publicly held corporation possessing an ownership interest in Complainant, or state that there is no such corporation.” Notably, unlike the federal district courts, where corporate disclosure
One of the primary objectives of the patent system.  In return for the government-granted right to exclude that is embodied in the patent, the inventor must disclose to the public through his patent the invention for which protection is sought.  Inventors unwilling to disclose their invention to the public may instead opt for trade secret protection.
statements are required under the Federal Rules of Civil Procedure, the ITC
International Trade Commission
does not have a standard requirement that this information be disclosed. Neither the ITC
International Trade Commission
Rules of Practice and Procedure nor any administrative law judge’s Ground Rules include a corporate disclosure
One of the primary objectives of the patent system.  In return for the government-granted right to exclude that is embodied in the patent, the inventor must disclose to the public through his patent the invention for which protection is sought.  Inventors unwilling to disclose their invention to the public may instead opt for trade secret protection.
requirement, and, to my knowledge, no administrative law judge at the ITC
International Trade Commission
has required it in the past.

Non-practicing entities have accounted for roughly 20% of all Section 337 investigations in recent years, so if ALJ Elliot’s orders continue and are replicated by other judges, it will have consequences for a large share of cases at the ITC
International Trade Commission....

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