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07.29.17

The United States International Trade Commission is an Embargo-Loving Bully That Ignores Invalidation of Patents at Hand

Posted in America, Courtroom, Patents at 4:48 pm by Dr. Roy Schestowitz

It’s also utterly biased in favour of — you’ve guessed it — US giants

Due process
Reference: Due process

Summary: Due process or inaction until guilt is proven not a concept that is honoured by the International Trade Commission (ITC), based on Cisco's case against Arista Networks (last covered here a week ago)

HERE IN TECHRIGHTS we are proponents of PTAB for all sorts of reasons; the patent microcosm loathes PTAB, but the actual producing industry appreciates it and guards it. As for the ITC (we wrote a lot about it before), it’s being incredibly irrational in blocking imports; here is one recent example of it. There are over a dozen other examples which we wrote about over the years. We repeatedly noted that there is nothing “international” about the International Trade Commission and it is too biased to be taken seriously as a patent ‘court’. It’s simply enjoying too much power which is frequently overused.

“We repeatedly noted that there is nothing “international” about the International Trade Commission and it is too biased to be taken seriously as a patent ‘court’.”Such was the case in this scenario that several law firms covered towards the end of the week [1, 2, 3]. “The ITC recently continued its trend of giving little deference to parallel PTAB IPR proceedings,” said one group of writers (marketing for their firm). “Though IPR remains an effective tool for defending against infringement allegations in district court,” they concluded, “this may no longer be true for ITC actions.”

Here is the entire concluding bit:

Though IPR remains an effective tool for defending against infringement allegations in district court, this may no longer be true for ITC actions. Unless they file an IPR before being sued in the ITC, it is unlikely that a respondent in an ITC action would be able to obtain a final written decision from the PTAB in a parallel IPR proceeding before the ITC issues a remedial order. Furthermore, as this case demonstrates, even if the respondent is able to obtain a final written decision from the PTAB, the Commission may refuse to suspend or rescind the remedial orders until all appeals of the PTAB decision have been exhausted and the Director of the USPTO issues a certificate cancelling the unpatentable claims. Given how long these appeals can take, the damage to respondent’s business by the remedial orders may already be done unless the respondent has a design-around.

In simple terms, the ITC jumped the gun and imposed an embargo/injunction using a questionable patent; even when PTAB deemed this patent invalid the sanctions remained in tact. It’s financially destroying the defendant (cannot import products to sell). Cisco is crushing a smaller rival this way.

What kind of justice is this? Where is due process? Is the accused presumed guilty until cleared of allegations/charges? This is another big stain on the ITC’s reputation. Nobody is safe (not even the innocent parties) and this is the kind of threat UPC would bring to Europe.

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