Talkin’ Trade

Many litigations require discovery not just from the parties to the dispute, but from other entities—and Section 337 investigations at the U.S. International Trade Commission are no different. But there are many unique aspects of third-party subpoena practice at the ITC. On this episode of Ropes & Gray's ITC-focused podcast series, Talkin' Trade, IP litigators Matt Rizzolo, Matt Shapiro, Rachael Bacha, and Brendan McLaughlin discuss the ins and outs of obtaining, enforcing, and responding to third-party subpoenas under the tight timelines of Section 337 proceedings.

Section 337 investigations at the U.S. International Trade Commission are known for their speed. But in recent years, the ITC has introduced multiple avenues designed to resolve some of these cases even more quickly—including just a few months after institution. On this episode of Ropes & Gray’s ITC-focused podcast series, Talkin’ Trade, IP litigators Matt Rizzolo, Matt Shapiro, and Brendan McLaughlin are joined by summer associate Ava Kamb to examine the development and history of the ITC’s so-called “100-day program,” as well as the more recent interim initial determination pilot program. They discuss the purpose and motivations behind these early disposition proceedings, the mechanics of how they are invoked and progress to a resolution, and consider whether these programs have lived up to expectations. 

While the overwhelming majority of Section 337 investigations at the U.S. International Trade Commission involve patent infringement claims, the ITC is empowered to prohibit an extremely broad set of unfair trade practices and unfair methods of competition. In fact, courts have noted that Section 337 is “broad enough to prevent every type and form of unfair practice” associated with the importation of goods into the United States. On this episode of Talkin’ Trade, Ropes & Gray IP litigators Matt Rizzolo, Cassandra Roth, Matt Shapiro, and Brendan McLaughlin discuss the wide variety of claims that may be brought under this subsection of the statute and address some unique aspects of how the ITC adjudicates them. 

Over the past few decades, the ITC has become increasingly focused on intellectual property—and specifically patent—disputes between domestic companies. According to some legislators and commentators, this shift has led the application of Section 337 astray from its original intent: adjudicating unfair trade practices in the importation of goods from foreign countries. Thus, over the past decade, there have been a number of proposed tweaks to Section 337, or the ITC more generally, to address issues like alleged non-practicing entity abuse of the ITC or alleged unfair trade practices implemented by China, such as forced technology transfer. In this episode of Talkin’ Trade, Ropes & Gray IP litigators Matt Rizzolo, Matt Shapiro, Brendan McLaughlin, and Nancy Attalla discuss some of the recent proposals and how they would change Section 337 practice.