ITC Section 337 Investigations

The United States Tariff Act of 1930 allows owners of US intellectual property, who exploit the rights to that property within the US, to seek remedies before the International Trade Commission (ITC) for unfair practices related to US imports. ITC investigations are expedited and final decisions are normally issued within 15-18 months from filing, including exclusion orders enforced by U.S. Customs and Border Protection barring importation of all infringing products. A Section 337 investigation is presided over by an Administrative Law Judge (ALJ) and involves at least three parties – complainant, respondent, and the Commission Investigative Attorney, whose office is charged with representing the “public interest” in each matter.

Exponent’s engineers and scientists have participated in numerous Section 337 Investigations before the ITC, on behalf of both complainants and respondents, for issues related to biomedical, electrical, mechanical, or materials design of products. We have performed analysis of validity of the patents in question, addressing issues of anticipation (35 U.S.C. Section 102), obviousness (U.S.C. Section 103), Graham Factors, Secondary Considerations, prior art, best mode, and enablement (U.S.C. Section 112). Exponent has also tested thousands of products to evaluate infringement on one or more claims, and our methods and techniques have held up to the highest levels of scrutiny and cross-examination. We have also addressed issues surrounding the technical prong component required to establish domestic industry for asserted claims.

The fast-paced nature of ITC cases is perfectly suited for Exponent, as our staff is accustomed to executing high quality work in short time periods. In one 337 investigation, Exponent evaluated thousands of rubber samples against multiple claims in less than two months, an accomplishment that could be matched by few, if any, consulting firms. Our breadth and depth of experience and our accomplished record as trial experts can be a potent supplement to a patent litigation team. 

Our breadth and depth of experience is also reflected in the technologies that we have been involved in for Section 337 Investigations. Such technologies include: polymeric materials; household appliances; semiconductor processing; nonvolatile memories; computer and microprocessor architecture; cell phone technologies; kinesiotherapy devices, light emitting diodes and software. Our staff’s analysis included prior art searches; reverse engineering of commercial products, analysis of electrical circuitry, mechanical testing, source code review, and analysis of semiconductor fabrication processes down to the 45nm technology node. Based on such analysis, Exponent has assisted clients by offering expert opinions regarding infringement, domestic industry and patent validity. Exponent has also offered opinions on claim construction and provided technology tutorials to ALJs.


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