Protecting Domestic Industries at the ITC

Intellectual Property and Patents

Article Snapshot


Colleen Chien


Santa Clara Computing & High Technology Law Journal, Vol. 28, No. 169, 2011


The author suggests a better application of the ITC test for domestic industries to determine who has standing to sue.

Policy Relevance

The ITC ought to consistently apply the technical prong of the “domestic industries” requirement and weigh commercial and operational activities more heavily in applying the economic prong so that the application of the statute will align closer to its historical purpose and plain language meaning.

Main Points

  • The International Trade Commission (ITC) gives injunctive relief against imports that infringe intellectual property (IP) in “domestic industries.” The ITC grants such relief in more instances than district courts with jurisdiction over IP claims.
  • The ITC’s purpose is to prevent trade disputes from importing goods. The ITC uses its own prerequisites and procedures, but relies on IP law to determine unlawful importation, and then administers its own remedies.
  • A major question plaguing the ITC is whether non-practicing patent holders should have standing (be allowed to) initiate an ITC investigation. This question heavily concerns the “domestic industries” requirement.
  • The “domestic industries” requirement has a technical prong and an economic prong. The technical prong is the requirement that there be articles protected by the patent. The economic prong is satisfied by commercialization and adoption of the technology.
  • The technical prong is proven by evidence that the asserted patent is being practiced, which is essentially the same as the test for infringement. The author argues that this prong should be applied to non-practicing entities.
  • The ITC ought to lend greater weight, in analyzing the economic prong, to activities that promote commercialization or operation of a domestic industry.
  • By always applying the technical prong of the “domestic industries” requirement and favoring commercial and operational activities in the economic prong, the ITC will more accurately align with the historical purpose of the Unfair Practices in Import Trade Statute.


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