The U.S. International Trade Commission (ITC) today announced a pilot program that will allow Administrative Law Judges (ALJs) to issue preliminary IDs on fewer than all of the issues in Section 337 Investigations. You can find the announcement here. The pilot program is part of the ITC’s ongoing efforts to resolve Section 337 investigations expeditiously, either by resolving issues on the matter or by facilitating resolution. The pilot program applies to all investigations initiated on or after May 12, 2021, as well as investigations initiated before May 12, 2021 at the discretion of the ALJ.
The pilot program allows ALJs to issue preliminary IDs prior to the main hearing that focus on disposition issues or key issues that can facilitate settlement. Potential problems can include infringement, patent invalidity, patent eligibility, reputation and / or the requirements of the domestic industry. It is at the discretion of the ALJs to decide whether to use the program for a particular problem. It is also at the ALJ’s discretion to modify the procedural plan in an investigation of the pilot, including suspending the discovery and procedural plan with respect to other issues, provided the changes do not violate the ITC’s legal obligation to resolve Section 337 investigations the “earliest practicable time”.
The main features of the pilot program procedures include:
- Interim IDs will be issued no later than 45 days prior to the scheduled start of the main evidence hearing in the investigation.
- The ALJ will keep a fact sheet, hold an evidence hearing and be briefed on the discreet issues that are part of the pilot program.
- The ALJ will issue a preliminary ID on these discreet issues which will be the subject of petitions for review and resolution by the Commission.
- The Commission will decide within 45 days of issuance whether a provisional ID card should be verified and decide on any verification within an additional 45 days.
Feedback from ALJs, the Office of Unfair Import Investigations (OUII), members of the ITC Bar Association, and private parties are welcome throughout the pilot. After two years, the ITC will decide whether to issue procedural rules for temporary identification.
The pilot program process is similar to that used by the ITC to implement its “100 day process”. The ITC first introduced a pilot program for 100-day procedures in 2013 and officially adopted procedures for 100-day procedures a few years later. However, 100-day procedures were not used frequently. Critics point out that 100-day procedures are limited in scope and can only be initiated by the Commission and not by the ALJ. The current pilot provides the ITC with more tools to resolve Section 337 investigations and gives the ALJ more flexibility and control over Section 337 investigations. At the same time, given the tight time constraints on a Section 337 investigation, ALJs may be reluctant to use the pilot if what is not clear is that a problem is likely to solve the case, or if solving a problem gives one party an advantage over the other. If both parties agree on the problem to be resolved, ALJs may be more inclined to use the pilot program.