WASHINGTON (November 22, 2021)—In discussions of patent policy, the International Trade Commission (ITC) has often flown under the radar. Despite this, it wields significant authority over patent disputes in the United States. The agency’s outsize role in the smartphone patent wars of the last decade, including the bitter multi-year battle between Apple and Qualcomm, makes it important to scrutinize its performance as a patent adjudicator.

These high-profile tech disputes, as well as suggestions that the ITC enables the free rein of “patent trolls,” have led to increased scrutiny from Congress in the form of the recently reintroduced Advancing America’s Interests Act (AAIA).

In a new policy study, Senior Fellow Charles Duan reviews the ITC’s patent investigation practices and concludes that while the AAIA is an important first step, more needs to be done to return the ITC to its original mission and reduce wasteful duplicative patent legislation.

“The reforms in the AAIA . . . will likely have substantial benefits to manufacturing firms and the public, particularly by limiting non-practicing entities’ access to the ITC and by enhancing consideration of the public interest. But there is more that can be done,” said Duan.

Read the full study here.

Top Three Points:

  1. While the ITC is supposed to stop foreign patent infringers that are outside the reach of U.S. courts, this has become a small fraction of the agency’s workload. Instead, the ITC is often used to pull American firms through duplicative litigation.

  2. The ITC is failing to serve its goal of protecting American industries, instead being used increasingly by non-practicing entities that themselves do not contribute products or services to consumers.

  3. The AAIA is an important first step that targets the problem of non-practicing entities at the ITC, but there is more to be done to prevent wasteful duplicative litigation between the ITC and district courts.