Patent Law

I was recently contacted by reader and author, Colleen V. Chien, Assistant Professor, Santa Clara University School of Law.  She has written a paper on the International Trade Commission titled, "Patently Protectionist? An Empirical Analysis of Patent Cases at the ITC."

Based on an analysis of all cases filed at the ITC between 1995-mid 2007, it makes the case for rethinking the interface between the ITC and district courts. 65% of the time cases are being filed in both venues, yet their outcomes and remedies can be different with a lack of res judicata of ITC decisions and different standards for granting injunctions. It reports statistics on and explores how the venue is being used, in general and compared to the district court, and argues for improved coordination between the two venues.

Some have charged "that the ITC is protectionist, is unfair to defendants, and fosters inconsistency in US patent law."  The author's empirical analysis "fails to find support for the first two contentions. ITC cases involve domestic defendants as often as they do foreigners, and often in combination. Thus, plaintiffs are using the ITC to prosecute not only foreign companies, but US companies as well. When cases were adjudicated, plaintiffs were more likely to win in the ITC than in district court. However, when cases filed in both venues were compared, the difference disappeared, cutting against claims of an anti-defendant bias. The data provide some support for the third contention, however."

The paper is available for download here. The final version will be published in the William and Mary Law Review in October.