In a pair of recent decisions, U.S. International Trade Commission (ITC) Administrative Law Judge (ALJ) Theodore R. Essex rejected complainant ChriMar's efforts to obtain public interest discovery from third party Google1 and significantly limited discovery from third party Broadcom.2
These disputes arose from the ITC's relatively new procedures on public interest. There is an exception for Section 337 remedies where the ITC, after considering the public health and welfare, competitive conditions in the U.S. economy, the production of like or directly competitive articles in the United States and U.S. consumers, finds that infringing articles should not be excluded.3 They are often referred to as the "public interest factors."
When a new complaint is filed, the ITC will publish a notice in the Federal Register inviting comments on the public interest from the parties and public.4 Based on an evaluation of the public interest submissions by the complainant contemporaneously with the complaint, the public and the respondents, the ITC will determine whether to delegate the taking of public interest information to the ALJ.5 If it is not delegated, then discovery on public interest may not be taken at the ALJ level of the proceeding.6
The Commission invited ChriMar, respondents, other interested parties and members of the public to file comments addressing the public interest.7 On November 15, 2011, third parties Google and Broadcom submitted public interest statements in response to the Commission's invitation in the Federal Register arguing why an exclusion order in this case would be against the public interest. In the December 1, 2011, Notice of Institution of the Investigation, the Commission directed the ALJ to take public interest discovery. In February 2012, ChriMar subpoenaed Google and Broadcom to obtain information related to their pre-institution public interest statements.
Google served objections to ChriMar's subpoena. Broadcom filed a motion to quash. Neither Google nor Broadcom served any responsive documents to the subpoenas. ChriMar moved to enforce its subpoena against Google or, in the alternative, to strike Google's public interest statement. ChriMar opposed Broadcom's motion to quash.
In denying ChriMar's motion to enforce its subpoena against Google, the ALJ found that "ChriMar's requests go so far beyond any relevance to this investigation that they border on bad faith."8 In denying ChriMar's alternative request to strike Google's public interest submission, the ALJ accepted the arguments by Google and the Commission Investigative Staff that Google was responding to the Commission's invitation to provide commentary on the investigation and its impact on the public interest. "While ChriMar may not like or agree with Google's submission, that does not provide a basis for striking the submission or provide a carte blanche for any and all discovery from Google."9
ChriMar's subpoena on Broadcom fared marginally better. The majority of document requests on Broadcom were either found to be "so far removed from the subject matter of this investigation [as] to be irrelevant" or "vague, overly broad, and unduly burdensome."10 The ALJ did, however, permit ChriMar to obtain discovery from Broadcom related to its role as a supplier of components to the respondents' accused products.
Read together, these decisions appear to encourage third parties to participate in the ITC's solicitation of information regarding public interest. The Commission will protect third parties from harassment by overly eager complainants.
If you have any questions about this Alert, please contact Rodney R. Sweetland III, any member of the Intellectual Property: ITC Section 337 Litigation Practice Group or any attorney in the firm with whom you are in regular contact.
•1. Certain Communications Equipment, Components Thereof, and Products Containing the Same, Including Power Over Ethernet Telephones, Switches, Wireless Access Points, Routers and Other Devices Used in LANs, and Cameras, Inv. No. 337-TA-817, Order No. 12 (May 29, 2012).
•2. Id., Order No. 13 (May 29, 2012).
•3. 19 U.S.C. §§ 1337(d)(1) (exclusion orders) and 1337(f) (cease and desist orders).
•4. 19 C.F.R. § 210.8(c).
•5. 76 Fed. Reg. 64808 (Oct. 19, 2011).
•6. 19 C.F.R. § 210.50(b)(1).
•7. 76 Fed. Reg. 68785 (November 7, 2011).
•8. Certain Communications Equipment, Components Thereof, and Products Containing the Same, Including Power Over Ethernet Telephones, Switches, Wireless Access Points, Routers and Other Devices Used in LANs, and Cameras, Inv. No. 337-TA-817, Order No. 12 at 5 (May 29, 2012).
•9. Id. at 6.
•10. Id., Order No. 13 at 6.
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