An International Guide to
Patent Case Management for Judges

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10.12.3 Review

Section 337 ALJ decisions can potentially go through multiple levels of review: (1) USITC review, (2) Presidential review, and (3) Federal Circuit review. USITC review

Parties have a right under the APA to petition the full USITC for review of an ALJ’s ID. The OUII Investigative Attorney also has the right to petition for review. A petition for review may request relief on one or more of the following grounds: (1) that a finding or conclusion of material fact is clearly erroneous; (2) that a legal conclusion is erroneous, without governing precedent, rule or law, or constitutes an abuse of discretion; or (3) that the determination is one affecting USITC policy.345 Only one vote from any participating Commissioner is required to order a review of an ID.346

If the USITC decides to grant review, it issues a notice setting forth the scope and issues it will review. Although the USITC conducts de novo review, it generally defers to ALJs with regard to the credibility of witnesses, though it is not obligated under the APA to do so. The USITC also considers “the public health and welfare, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, and United States consumers” in deciding whether to exclude imported products.347 The USITC generally views the protection of intellectual property and grant of an exclusion order to be in the public interest.348

The USITC has the authority to affirm, set aside, or modify any portion of the ID under review. Because of the heavy evidentiary burden required to overturn the ALJ, the USITC usually upholds the ID. Presidential review

If the USITC determines that a violation of Section 337 has occurred and adopts a remedy, then the case is passed to the President of the United States.349 Within a 60-day period, the President may disapprove the USITC order for “policy reasons.”350 In 2005, the President assigned this authority to the United States Trade Representative.351 Presidential disapproval of a USITC order is extremely rare and has only occurred six times (most recently in 2013).

During the Presidential review period, respondents may continue to import and sell infringing articles provided the respondent posts a bond with U.S. Customs and Border Protection in an amount determined by the USITC. However, if the President does not disapprove of the USITC’s remedial order, the bond may be forfeited to the complainant.352 Federal Circuit review

A USITC decision “excluding or refusing to exclude articles from entry” that is not vacated by the President is appealable to the Federal Circuit by “[a]ny person adversely affected.”353 The Federal Circuit can, however, adjudicate USITC dismissals for lack of subject matter jurisdiction and interlocutory orders.354 The Federal Circuit can also review the USITC’s decision to decline to institute an investigation where the claims were precluded by statute (and thus a cognizable claim was not stated), as decisions of this type reach the merits of the complaint and decide whether the complainant can proceed in a Section 337 action.355

In appeals of USITC decisions under Section 337, the USITC is the appellee and defends its decision. Even so, prevailing parties commonly intervene to support the USITC’s final determination on appeal.