As I wrote last May (here), the U.S. International Trade Commission (ITC) has begun a pilot program that will allow Administrative Law Judges (ALJs) to issue interim Initial Determinations (IDs) on fewer than all issues in a Section 337 investigation. On January 25, 2022, ALJ Cheney became the first ALJ to utilize the interim ID pilot program in two related investigations – Certain Replacement Automotive Lamps, Inv. No. 337-TA-1291 and Certain Replacement Automotive Lamps, Inv. Nos. 337-TA-1292.

The ITC’s Interim ID Pilot Program

The interim ID pilot program is part of the ITC’s ongoing efforts to streamline resolution of Section 337 investigations. Under the pilot program, ALJs have discretion to issue interim IDs focused on case-dispositive issues or significant issues that may facilitate settlement, in advance of the main evidentiary hearing. ALJs also have discretion to stay other aspects of an investigation or proceed in parallel. Issues that may be resolved by an interim ID include infringement, patent invalidity, patent eligibility, standing, and/or the domestic industry requirement. Key features of the pilot program procedures include:

• The ALJ will develop a factual record, hold an evidentiary hearing and receive briefing on the discrete issue that is to be the subject of the interim ID.

• The ALJ will issue an interim ID no later than 45 days before the scheduled start of the main evidentiary hearing.

• The interim ID will be subject to petitions for Commission review and resolution.

• The Commission will determine whether to review an interim ID within 45 days of issuance, and resolve any review within another 45 days.

Despite initial interest from members of the ITC bar, only a few requests to utilize the interim ID program have been submitted. Prior to the present investigation, all previous requests were denied. For example:

• In Certain Televisions, Remote Controls, and Components Thereof, Inv. No. 337-TA-1263, ALJ McNamara refused to grant the respondents’ request for entry into the interim ID pilot program to determine whether the only asserted claim of one patent is indefinite. Notably, the respondents waited almost two months to file their motion and the indefiniteness issue was not case-dispositive.

• In Certain Electrolyte Containing Beverages and Labeling and Packaging Thereof, Inv. No. 337-TA-1269, the Notice of Institution of Investigation stated, “that issues regarding whether the domestic industry requirement of section 337 is met may be present here. In instituting this investigation, the Commission has not made any determination as to whether complainants have satisfied this requirement. The presiding Administrative Law Judge may wish to consider this issue at an early date, including through use of the interim initial determination (ID) pilot program.” Taking a cue from that suggestion, the respondents moved for entry into the interim ID pilot program on the domestic industry requirement, but once again, ALJ McNamara declined to utilize the interim ID pilot program.

• In Certain Flocked Swabs, Products Containing Flocked Swabs, and Methods of Using Same, Inv. No. 337-TA-1279, the respondents moved for entry into the interim ID pilot program on the issues of non-infringement and the technical prong of the domestic industry requirement, based on a particular claim construction. ALJ Bhattacharyya, however, declined to utilize the interim ID pilot program for these issues.

Certain Replacement Automotive Lamps Investigations (337-TA-1291 and 337-TA-1292)

Prior to institution of each investigation, the respondents requested that the Commission utilize the Early Disposition Program (i.e., “100-day Proceeding”) to adjudicate the issue of the economic prong of the domestic industry. The Commission denied those requests because the issue “may be too complex to be decided within 100 days of institution.” Unlike the investigations noted above, however, the respondents did not request entry into the interim ID pilot program. Instead, ALJ Cheney, sua sponte, decided to utilize the pilot program for both investigations. In his January 25, 2022 Order Seeking Submissions on Target date and Setting Preliminary Conference, he set an interim evidentiary hearing limited to the economic prong of the domestic industry requirement for April 20, 2022. In doing so, ALJ Cheney became the first ALJ to utilize the pilot program.

Takeaway

The ITC’s interim ID pilot program has followed a path similar to the ITC’s Early Disposition Program, an earlier effort to streamline ITC Section 337 investigations. The ITC first introduced a pilot program for early disposition in 2013. The ITC formally adopted procedures for the Early Disposition Program a few years later. Practitioners should expect a similar path for the interim ID pilot program.

The interim ID pilot program gives ALJs more tools to resolve expeditiously Section 337 investigations. ALJ Cheney’s use of the pilot program will be watched closely and will help shape the interim ID process in future investigations. If ALJ Cheney’s process is successful, more parties may request entry into the pilot program and more ALJs may utilize the pilot program to have more control over their Section 337 investigations, avoid unnecessary litigation, and save time and cost for the parties.