The United States International Trade Commission (“ITC”) is a relatively new player in patent enforcement. The ITC, an administrative agency, can exclude the importation of infringing products into the United States, and interest from patentees in obtaining such remedies has grown as of late. Yet, many practitioners and scholars postulate that the Federal Circuit’s recent decision Kyocera Wireless Corp. v. International Trade Commission, which dramatically narrowed the scope of available ITC remedies, will significantly alter ITC practice and cause a decline in ITC filings.
This Article, by collecting data on ITC filings and parallel district court filings before and after Kyocera, makes a surprising finding. Conventional wisdom is wrong – patentees have not reacted to Kyocera in any of the ways predicted. The make-up of ITC cases has not changed, and the number of ITC filings continues to rise at a rapid pace. These findings do more than simply answer open questions regarding Kyocera – they speak volumes on the favorability of the ITC as a venue and its permanency in the patent enforcement landscape.