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COVID-19’s Impact on Section 337 Investigations at the U.S. International Trade Commission (Update)

Like many other Federal Agencies and U.S. District Courts, the U.S. International Trade Commission (“ITC”) has been open for business during the COVID-19 crisis, but on a limited basis. On June 22, 2020, the ITC announced plans for re-opening on a broader basis.

As the District of Columbia and the surrounding areas begin a phased re-opening, the ITC has developed a Three-Phase Plan to Re-Establish On-Site Business Operations at the ITC Building based upon Office of Management and Budget (OMB) and Office of Personnel Management (OPM) guidance adapted for federal agencies, as well as the Centers for Disease Control and Prevention (CDC), and other relevant agencies regarding COVID-19. The Three-Phase plan will be in effect until further notice.

The ITC is currently in Phase 1 and the Chairman will assess when to begin progression through each phase based on OMB, OPM, and CDC guidance and gating criteria. The relevant guidance recommends a 14-day downward trajectory of benchmark metrics in COVID-19 cases in the region, among many other factors, before each phase can begin, and again each time before moving on to the next phase of the phase plan. There is no set timeline for entering into any specific phase.

Phase One and Phase Two

When the Chairman determines that the gating criteria are met and the ITC’s operational needs warrant progression in view of all the external and internal factors, the ITC will progress through Phase One and Phase Two. Throughout Phase One and Phase Two there will be little change in ITC operations from the current status. For example, in both phases:

  • The USITC COVID-19 Action Plan will remain in effect as noted in our prior blogs here and here.

  • The USITC Building will remain closed to the public, and accessible only by employees.

  • The suspension of in-person Commission activities will remain in effect.

  • Temporary modification of certain Commission Rules of Practice and Procedure will remain in effect.

Phase Three

When the Chairman determines that the gating criteria are met for a third time, and the ITC’s operational needs warrant progression in view of all the external and internal factors, the ITC will progress to Phase Three. Changes effective in Phase Three include:

  • Normal on-site business operations will resume at the ITC Building.

  • The ITC Building will re-open to the public for access.

  • All in-person activities at the ITC Building may resume, and all suspensions are lifted.

  • Prior to entering Phase Three, the ITC may indicate any procedures and protocols instituted during Phase One and Phase Two that may be modified or remain in effect during Phase Three.

  • The ITC will institute New Building Visitor Access Procedures. Visitors must check in at the Ground Floor Guard’s Station (regardless of access point – front entrance or garage) before proceeding elsewhere within the building. The Guards will screen all visitors consistent with normal procedures, including requiring that they enter their name and telephone number in the Visitor Logbook. Visitors will be required to self-certify that they are not displaying COVID-19 symptoms and have not knowingly been in recent contact with someone who has, or is suspected to have, COVID-19.

The Future of Section 337 Investigations

Although the COVID-19 crisis has had an impact on the conduct of Section 337 Investigations, parties are coping with the changes, including the new filing / service procedures, flexibility in discovery, alternative approaches to depositions and Markman Hearings, and delays in Evidentiary Hearings. Moreover, Complainants continue to recognize the advantages and importance of ITC Section 337 investigation as evidenced by the fact that the number of Complaints filed during the COVID-19 crisis are consistent with historical data.

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© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 178
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About this Author

Adam R. Hess Intellectual Property Attorney Squire Patton Boggs Washington DC
Partner

Adam Hess has more than 25 years of experience representing clients in intellectual property (IP) litigation and counseling clients on IP matters involving a wide array of technologies.

Adam serves as lead counsel in federal district court litigation, in Section 337 investigations at the US International Trade Commission (ITC) and in international arbitration, including before the International Chamber of Commerce (ICC) in Europe and before several US arbitration bodies.

He has significant experience in Section 337 investigations at the ITC.  Recently, he obtained a General...

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