Intellectual Property / ITC Section 337 Litigation
Domestic Industry Requirement
Overview
Engagements

As a trade statute, in order to be entitled to relief under Section 337, the complainant must establish that a domestic industry for articles protected by the asserted patent(s) exists or is in the process of being established as demonstrated by significant investment in either plant and equipment or labor or capital, or substantial investment in the exploitation of the intellectual property, including engineering, research and development, or licensing. Given that these factors are discrete, satisfaction of any one of them is sufficient to meet the domestic industry requirement.

The Commission’s decision in Certain Multimedia Display and Navigation Devices and Systems, Components Thereof, and Products Containing Same (Inv. No. 337-TA-694) (“Multimedia Display Decision”) addressed the extent to which a complainant can establish a domestic industry based solely on U.S. investments in licensing. The Brattle Group represented the complainants in this matter and, as a result, has in-depth knowledge of the decision and the impact it will have on litigation at the ITC.

Our team has conducted rigorous economic and financial analyses to evaluate whether a complainant’s investments are sufficient to establish that a domestic industry exists. The Brattle Group has worked on behalf of both complainants and respondents to:

  • Determine the complainant’s domestic investments in plant and equipment and in the employment of labor and capital
  • Determine the complainant’s domestic investment in exploitation of the asserted patents, including engineering, research and development, and other investments such as sales, service, and customer support
  • Identify the complainant’s domestic licensing activities related to the asserted patents
  • Evaluate the nexus between the complainant’s investments and the asserted patents
  • Identify the domestic investments of complainant’s licensee related to the asserted patents