Earlier today, the U.S. International Trade Commission (ITC) announced a pilot program that will allow Administrative Law Judges (ALJs) to issue interim Initial Determinations (IDs) on fewer than all issues in Section 337 investigations. The announcement can be found here. The pilot program is part of the ITC’s ongoing efforts to expeditiously resolve Section 337 investigations, either through resolution of issues on the merits or by facilitating settlement. The pilot program will apply to all investigations instituted on or after May 12, 2021, and to investigations instituted prior to May 12, 2021 at the discretion of the ALJ.

Under the pilot program, ALJs can issue interim IDs focused on case-dispositive issues or significant issues that may facilitate settlement, in advance of the main evidentiary hearing. Possible issues may include infringement, patent invalidity, patent eligibility, standing, and/or the domestic industry requirement. ALJs will have discretion to decide whether to utilize the program for a particular issue. ALJs will also have discretion to modify the Procedural Schedule in an investigation in the pilot program, including suspension of discovery and the Procedural Schedule with regard to other issues, so long as the modifications do not violate the ITC’s statutory obligation to resolve Section 337 investigations at the “earliest practicable time.”

Key features of the pilot program procedures include:

• Interim IDs will issue no later than 45 days before the scheduled start of the main evidentiary hearing in the investigation.

• The ALJ will develop a factual record, hold an evidentiary hearing and receive briefing on the discrete issues that are part of the pilot program.

• The ALJ will issue an interim ID on these discrete issues, which 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.

Feedback from ALJs, the Office of Unfair Import Investigations (OUII), members of the ITC bar, and private parties are welcome throughout the pilot program. After two years, the ITC will decide whether to promulgate procedural rules governing interim IDs.

The pilot program process is similar to that used by the ITC to implement its “100-day proceedings.” The ITC first introduced a pilot program for 100-day proceedings in 2013 and then formally adopted procedures for 100-day proceedings a few years later. However, 100-day proceedings, have not been utilized frequently. Critics note that 100-day proceedings are limited in scope and can be initiated only by the Commission, not by the ALJ. The current pilot program gives the ITC 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 of a Section 337 investigation, ALJs might be hesitant to use the pilot program if it is not clear that an issue likely will resolve the case or if resolution of an issue will give an advantage to one party over the other. If both parties agree on the issue to be resolved, ALJs might be more inclined to utilize the pilot program.