• International Trade Commission And Federal Circuit Clarify Standards For Satisfying A Domestic Industry Based On Licensing Activities In Section 337 Cases
  • December 19, 2011 | Authors: Holmes J. Hawkins; Gilbert B. Kaplan; Jeffrey M. Telep; Taryn Koball Williams
  • Law Firms: King & Spalding LLP - Atlanta Office ; King & Spalding LLP - Washington Office
  • Two recent decisions clarify the domestic industry standard under Section 337 of the Tariff Act of 1930 when a complainant’s domestic activity consists solely of licensing activities. In order to prove a violation of Section 337 for patent, trademark or copyright infringement, a Complainant must establish that a domestic industry exists or is in the process of being established. Pursuant to Sections 337(a)(3)(A)-(C), a domestic industry can be established by showing, with respect to the articles covered by the intellectual property, one or more of the following: (A) significant investment in plant and equipment; (B) significant employment in labor or capital; or (C) substantial investment in a patent’s exploitation, including engineering, research and development, or licensing. Together, the two decisions demonstrate an increased level of scrutiny on a complainant’s domestic industry investments related to licensing large patent portfolios and investments in patent litigation.