Have 'Public Interest Factors' Finally Come Of Age At The ITC?

The US International Trade Commission has been giving more weight to public interest factors in recent times, as Carl Charneski explains.

Section 337 of the Tariff Act of 1930, as amended, empowers the US International Trade Commission (ITC) to investigate unfair trade practices such as unfair methods of competition and unfair acts in the importation of articles, as well as patent, copyright, trademark, and mask work infringement, where the infringing products are imported into the US.

In the course of its investigations, the ITC takes into account 'public interest factors'. This is done both at the beginning and the end of an investigation. Until recently, public interest factors received little attention. Certainly there have been times when they took centre stage and stole the spotlight, but overall, they just didn't seem to be important at the ITC—at least, not consistently. Today, that is no longer the case and public interest factors have grown hugely in relevance.

In the public interest

The public interest factors are:

Public health and welfare; Competitive conditions in the US economy; The production of like or directly competitive articles in the US; and US consumers. These factors are first taken into account when a complaint is fi led, and before a notice of investigation is issued. This early consideration of public interest allows the ITC to determine at the very start of an investigation whether the administrative law judge (ALJ) should take evidence on these factors.

The second time that public interest factors come into play is after the ALJ issues an initial determination and recommends a remedy (also known as a Recommended Determination). This article addresses the ITC's consideration of the public interest in fashioning a remedy in the event of a Section 337 violation.

To understand the potential importance of the public interest factors, one need only look to the statute. Section 337(d)(1) provides that the ITC is to issue a "limited exclusion order" upon finding a Section 337 violation, "unless, after considering the effect of such exclusion upon the public health and welfare, competitive conditions in the US economy, the production of like or directly competitive articles in the US, and US consumers, it finds that such articles should not be excluded from entry".

A big step forward

So what is changing at the ITC relative to the public interest factors? They are becoming more important when the investigation is before...