Reflections on recent developments of statutory public interests in patent-based Section 337 proceedings

Yu, Yang


After the recent amendments in 2011 and 2013, at least from the procedural perspective, complainants presently have to be burdened with more cost of collecting adequate information concerning statutory public interests even before putting forward the complaint, in order to justify the desired remedy by virtue of indicating no harm to statutory public interest. This reflects the ITC’s aspiration to make the final determination more precise and equitably justified on the analysis of public interest issues, so as to ultimately protect relevant domestic industries in terms of curbing intellectual property infringements in imports simultaneously without unduly sacrificing certain statutory public interest. Although the actual effect of the amendments in the long run still remains to be seen, the amendments possibly will generate some desirable results: First, from the perspective of law and economics, they will be conducive to decrease the possible related adverse impacts in terms of negative externalities and increase economic efficiency; Second, the amendments are also favorable to curb the existing “patent troll” suits, although they are currently still not severe, by means of adequate considerations concerning statutory public interests, so as to optimally achieve the ultimate legislative goal of section 337; Third, it’s evident that an interest-balanced approach, in terms of more in-depth analysis of public interest, is better than the traditional all-or-nothing approach to some extent. Accordingly, a more equitable adjudication in terms of a better interests balance can be attained by utilizing the interest-balanced approach.


Section 337, patent infringement, public interest, NPE

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