ITC Further Delays Ruling in Electric Car Foreign Trade Secret Case
The ITC was originally scheduled to conclude Lithium-Ion Batteries (Inv. 1159) on October 26. That first deadline was extended by six weeks to December 10; now the Commission has pushed back its decision a further ten weeks until February 10. It’s not unusual for the Commission to extend cases past their original deadline, especially for important cases, but this latest extension leaves us waiting an additional two months for a decision with significant public interest implications.
I briefly explained the stakes in this case in a previous post:
The dispute . . . is between Korean giants LG and SK, with LG accusing SK of misappropriating trade secrets in Korea related to [electric vehicle] battery manufacturing. The ALJ granted a default judgment in LG’s favor after finding that SK has destroyed evidence.
The case has attracted a lot of attention from business groups, media outlets, and politicians because an exclusion order would eliminate the respondent’s ability to manufacture EV batteries in Georgia and seriously disrupt supply chains for some U.S. auto manufacturers. If the Commission upholds the ALJ’s determination of violation, it will need to seriously consider whether these consequences can be justified by any public interest in enforcing foreign trade secrets.
The agency is also scheduled to make a final ruling in another case involving foreign misappropriation of foreign trade secrets related to botox injections on December 16. The Botox case—Botulinum Toxin Products (Inv. 1145)—also raises serious public interest concerns. The Initial Determination’s finding that the injured domestic complainant had standing as a “licensee” of the foreign trade secret owner was based on the existence of an anticompetitive market-allocation agreement in which Allergan paid a Korean competitor to stay out of the U.S. market.
The ultimate rulings in these cases will signal whether the agency intends to become a global trade secret cop at the expense of U.S. consumers and businesses—a task that goes way beyond its limited statutory mission of protecting domestic industries from unfair trade.
Image Credit: Ged Carroll