Where Have All the Investigations Gone? 

January 2013
Andrew Clarke

It has become conventional wisdom that an unintended consequence of the U.S. Supreme Court’s decision in eBay v. MercExchange, 547 U.S. 388 (2006) is a continually growing caseload of Section 337 investigations at the International Trade Commission (ITC). Faced with higher standards for injunctions in Federal courts, it was expected that many plaintiffs, especially non-practicing entities (NPEs), would seek “exclusion orders” (functionally equivalent to injunctions) at the ITC. This view has been touted so frequently that it has taken on an aura of truth. Until recently, the data supported such a view. For example, the ITC itself in June 2012 released “Facts and Trends Regarding USITC Section 337 Investigations,” noting a 530% increase in investigations from FY 2000 to FY 2011 and implicitly confirming the peception of an explosion in cases.

However, a closer look at the filing patterns of Section 337 ivestigations at the ITC shows that the number of investigations instituted has been falling for the past year, and the drop has been especially steep in the last six months. The pace of new investigations at the ITC (typically instituted a month after complaints are filed) has slwed to the point that, from October 24, 2012 to November 29, 2012, there were no new complaints filed. To provide some context for this, in 2011, there was an average of 5.75 new investigations instituted each month. Is this merely a temporary pause in the frenetic caseload of 337 investigations, post-eBay? Or does this decline reflect a more lastingtrend, and if so, what could be its cause?

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