AT WIT, we stay ahead of emerging trends before the International Trade Commission (ITC) by examining the strategic shifts shaping this evolving venue. In building industry-specific teams to address the unique needs of those litigating before the Commission, WIT's ITC Practice Team closely monitors the technology at issue in each complaint and the overall landscape of ITC investigations.
Recently, we spoke to our ITC Practice Chair, Jeffrey Dorfman, a seasoned New York attorney, to gain insight into ITC investigation trends in 2024. With years of experience working with clients on matters before the ITC, Dorfman uses his knowledge and appreciation for this specialized venue to help fulfill our clients' expert needs. He and the WIT team are working with clients on nearly half of all ITC matters, recommending leading source code experts, economists, industry insiders, and a wide range of technical experts. Here's what he had to say about ITC filings and possible investigation trends this year so far.
Q: Given the number of investigations filed in 2023, how does this year's case volume compare? Are you observing an upward or downward trend in ITC filings so far?
Dorfman: At this point in time, I believe we are at 27 complaints filed (one of which was not instituted), putting us on pace for approximately 46 investigations filed this year. This is more than last year's 37 investigations of which we categorized 28 as "new" matters, meaning that the ITC had previously not seen any of the IP involved in those complaints. This is still lower than filing numbers from the previous four years (2019 to 2022), but we are certainly seeing an upward trend compared to last year's historic low.
Q: What trends are emerging this year in terms of the industries and technologies most frequently involved in ITC investigations?
Dorfman: Over the course of this year, we've seen many investigations falling into the wireless category, involving memory-related technologies, Wi-Fi, base stations, modules, fiber optics, and more. When comparing to previous years, we have noticed that many of the same subject matters continue to be at the center of complaints: vape-related matters, another wearables case, camera tech, and more.
Q: In your experience, how significant is the role of expert testimony in ITC cases, and what qualities make an expert particularly effective?
Dorfman: The role of experts can never be understated and is often the key testimony that determines the outcome of a matter. At this year's American Conference Institute's 16th Annual Practitioners' Think Tank on ITC Litigation & Enforcement in Washington, D.C, we heard directly from the ITC's Administrative Law Judges (ALJs), including the Chief Judge Clark Cheney, that expert testimony is crucial, and that the right expert can make all the difference. ALJ McNamara stated that she has seen such good in-person expert testimony that it has swayed her opinion on a case.
In terms of qualities that make an expert effective, confidence and authenticity are paramount. An expert should be true to their experience and knowledge, openly admitting both what they know and what they don't. Oftentimes, a professorial type proves to be the best expert for the ALJs, as their teaching experience enables them to explain complex concepts clearly and effectively during hearings.
Q: Where can practitioners find comprehensive updates and insights on the latest developments and procedural changes at the ITC?
Dorfman: There are many venues that provide updates and insights on ITC investigations, and we utilize a variety of resources to inform our Practice activity. In terms of resources, the IDS website is the best place to find investigation updates, and EDIS gives a more specific look at dockets for all individual investigations.
At WIT, we know that when it comes to ITC statistics, data is typically fractured and spread across multiple resources. To address this, WIT's ITC Practice Team gathers data directly from EDIS and IDS, with our team reviewing each matter to offer our clients exclusive insights on ITC investigations and ALJ activity. We did so to evaluate 2023's investigation trends and created a report based on this data that you can find here.
Online resources are not the only way to get information on the Commission. I highly recommend attending industry conferences like ACI's aforementioned ITC event and becoming a member of the ITCTLA to attend meetings that provide these types of updates. WIT consistently attends the ITCTLA events and has even provided experts for their mock trial program last fall.
Q: What unique advantages does WIT's ITC Practice offer to companies involved in ITC litigation?
Dorfman: I think we understand the venue better than any other expert provider as we track both individual cases and broader trends at the ITC, allowing us to accurately identify the types of experts our clients need. Our team includes attorneys who have practiced in the ITC, providing us with an insider's perspective on the nuances and demands of 337 investigations, which is crucial for selecting and preparing the right experts.
We also leverage our teams of world-class experts across various industries, ensuring that our clients receive testimony from individuals who are not only highly knowledgeable but also effective communicators. These experts are adept at explaining complex technical information clearly and persuasively to ALJs and other stakeholders. This combination of venue expertise, experienced legal professionals, and top-tier experts uniquely positions WIT to deliver exceptional support to companies involved in ITC litigation, maximizing their chances of a favorable outcome.
How WIT's Experts Can Assist in ITC Investigations
At WIT, we understand that ITC Investigations can be highly nuanced and have engaged with experts who possess a deep understanding of the major industries and technologies at issue before the Commission. Our ITC Practice features sector-specific teams of technical experts, knowledgeable industry veterans, and skilled specialists in code review and analysis who are dedicated to achieving the best outcomes for our clients, providing comprehensive support through every stage of the investigation process.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.