According to the order, in a patent infringement investigation before the ITC, a complainant must show that a domestic industry “relating to the articles protected by the patent” either “exists” or “is in the process of being established.” 19 U.S.C. § 1337(a)(2) (“Section 337(a)(2)”). In its motion for summary determination, Respondents argued that Complainants could not satisfy the domestic industry requirement of Section 337(a)(2) because no domestic industry products had been sold by the time the complaint was filed. Respondents cited the initial determination in Certain Non-Volatile Memory Devices and Products Containing Same (“Non-Volatile Memory”), where the term “articles” in Section 337(a)(2) was interpreted to mean “products or other commodities that are sold in the marketplace.” According to Respondents, this interpretation requires Complainants to have sold, or at least made available for sale, a domestic industry product before filing the complaint. Complainants disputed Respondents’ interpretation of the statute, arguing that no such requirement exists.
Judge Lord agreed with Complainants that there is no requirement that a domestic industry product be sold before filing a complaint for a domestic industry to exist under Section 337(a)(2). In reaching her decision, Judge Lord first distinguished Non-Volatile Memory, clarifying that while that case “describes the type of article that is required under section 337; it [did] not impose requirements on how or when such an article must be sold.” (emphasis added). Indeed, the alleged domestic industry product in Non-Volatile Memory was used only for research purposes and was likely never sold.
Judge Lord then concluded that although Complainants in this case had not sold a specific product by the time of the complaint, they had placed the alleged domestic industry products in the marketplace, making the existence of them public and declaring that these products would be sold. Judge Lord deemed this sufficient to show that the products met the requirement for a domestic industry “article” under Section 337(a)(2). Judge Lord explained that her interpretation of the term “article” in Section 337(a)(2) was consistent with the term’s use in other parts of the statute.
Practice Tip: A complainant is not required to show an “article” was actually sold by the time the complaint is filed to meet the domestic industry requirement of Section 337(a)(2). Instead, to meet the domestic industry requirement, it is sufficient for a complainant to show that the article was made available to the public for possible sale by the time the complaint was filed.
In the Matter of Certain Road Construction Machines & Components Thereof, Inv. No. 337-TA-1088, Order No. 32 (Aug. 28, 2018), Denying Respondents’ Motion for Summary Determination of No Domestic Industry (ALJ Lord)