The International Trade Commission (ITC) is an integral part of the American patent system. Although it can only block imports on behalf of domestic industries, now that most technology products are manufactured abroad and Congress has relaxed the domestic industry requirement, nearly every patentee is a potential ITC complainant and nearly every patent defendant is a potential ITC respondent. The ITC decides patent cases in less than half the time district courts do, on average, and hears a significant share of the nation’s patent trials.
But the ITC is also an outlier in the American patent system. The ITC can’t award damages or hear counterclaims. It’s easier to get an injunction from the ITC than from a district court, particularly if you are a patent assertion entity (“PAE” or patent “troll”) that uses primarily patents for licensing, rather than to support the commercialization or transfer of technology.
In the 6 years since the Supreme Court decided eBay, district courts have given contested injunctions to PAEs exactly once by our count, and three-quarters of the time to practicing companies; in contrast, the ITC still routinely awards injunctions to all comers. The impact of an ITC “exclusion order” preventing importation of a product can be dramatic. To comply with such an order, a company must pull its products from the market or redesign them. The Supreme Court has repeatedly said that an injunction is an extraordinary remedy, but the ITC is not bound by the Court’s jurisprudence on patent injunctions.