The Other Patent Agency: Congressional Regulation of the ITC

Sapna Kumar, Duke University Law School


The United States International Trade Commission (ITC) has recently experienced a dramatic increase in patent infringement investigations under § 337 of the Tariff Act of 1930. Patent holders are drawn to the agency because of its speedy proceedings and its ability to award broad exclusion orders. This rise in ITC patent litigation, however, has revealed weaknesses in the structure of § 337. In broadening the provision to facilitate the enforcement of patent rights, Congress failed to consider the impact of this change on technological innovation and on the coherency of the patent system. In particular, Congress did not clarify the relationship between § 337 and the Patent Act, leading to divergence in the law. Nor did it consider the effect that patent-related exclusion orders would have on innovation and on strategic behavior. This article recommends that Congress harmonize ITC patent law with the Patent Act and related federal precedent. It furthermore suggests that Congress take a unified approach to promoting innovation in the patent system.