Yesterday, in InterDigital v. ITC and Nokia, the Federal Circuit held that non-practicing entity InterDigital's patent licensing alone met the domestic industry requirement of Section 337 of the Tarriff Act of 1930, 19 USC 1337(a)(2) and 1337(a)(3). The Federal Circuit also stated the statute does not require physical articles be made in the USA. This decision poses an obstacle to the effort to reduce the impact of non-practicing entity (NPE) lawsuits in the ITC. For more detail on the lobbying, see an earlier post: Lobbying to Block ITC from Hearing Non-practicing Entities
So I expect NPEs will continue to file lawsuits at the ITC seeking injunctive relief apart from EBay considerations until (1) the domestic industry requirement is rewritten, or (2) the SCOTUS reverses the InterDigital interpretation of the domestic industry requirement. But I don't expect many NPEs to successfully assert SEPs in the ITC given the ITC only grants exclusion orders.
Copyright © 2013 Robert Moll. All rights reserved.
