ITC Launches Pilot on Quicker Exclusion Order Rulings for New, Redesigned Imports

The International Trade Commission is beginning a new pilot program (here) to test expedited procedures for determinations of whether new or redesigned products are subject to import bans under Section 337 exclusion orders, the agency said. Under the pilot, the ITC will issue modification and advisory opinions on a given product within 60-90 days, or up to 6-9 months depending on the complexity of the issues involved, said the agency in a fact sheet (here). The launch of the pilot comes shortly after CBP said it would propose its own “inter partes” ruling process for deciding issues of exclusion order enforcement (see 1502120061). Speaking at a Georgetown Law School conference, a CBP official said the agency would still move forward with its inter partes proposal, but could end up scrapping it if the trade community finds the ITC process more useful.

While importers have been able to request modification and advisory opinions “for years,” the ITC pilot seeks to “improve and expedite them to better meet the needs of those affected by remedial orders,” said the commission. Modification proceedings determine whether the scope of an existing exclusion, consent or cease and desist order should be changed based on a new or modified design. Advisory proceedings result in an advisory opinion on whether importing a redesigned or new product would violate an existing exclusion, consent, or cease and desist order. Both offer inter partes processes that allow both the importer and the patent holder to argue their positions, but only a modification opinion is appealable to the U.S. Court of Appeals for the Federal Circuit.

During the pilot, the ITC will expedite modification and advisory opinion procedures, ruling within the following timelines based on the complexity of the case:

• 60-90 days for requests involving purely legal questions;
• 90-180 days for requests involving minimal fact finding; or
• 6-9 months if the case requires extensive fact finding and the involvement of an administrative law judge.

The ITC announcement comes just after CBP made known its plans to propose a new process for rulings on exclusion order coverage. The “inter partes” procedures would allow for participation of both the importer and the rights holder during the rulings process, allowing CBP to get off the “merry-go-round” of one side getting a favorable ruling and the other side promptly appealing it through a request for reconsideration, said Sandra Bell, deputy assistant commissioner at CBP’s Office of International Trade, during a panel discussion at the Georgetown Law School International Trade Update on Feb. 27.

The launch of the ITC’s pilot now creates the question of whether or not the change to the CBP rulings process is necessary, said Bell, adding she just found out about the ITC program last week. CBP will move forward with a proposed rule, probably before the end of the year, said Bell. A draft proposal has been developed, and is now beginning the formal agency review process before it begins interagency review. In its proposal, CBP will ask for comments on whether the ITC process is providing relief to importers, and whether importers would rather use the ITC program instead of a revised CBP rulings process. If comments are overwhelmingly in favor of using the ITC process instead of CBP’s, then CBP could then withdraw its proposed rule, said Bell.

An ITC official in the audience at the Georgetown Conference stood up to say he didn’t see a reason why both the ITC advisory/modification opinion process and the CBP inter partes ruling process can’t work concurrently. The ITC pilot is currently an “experiment” to see if it can meet the shorter timelines, and the commission isn’t sure what kind of caseload it’s going to get. Responding to the ITC official, CBP’s Bell said she thinks “both tracks can run parallel,” but “just not on the same case.”