Orrick's Jordan Coyle authored an article in Corporate Counsel entitled "Making Sense of Section 337 Litigation Statistics at the ITC." The article examines the International Trade Commission's recently released statistics on Section 337, a trade act passed to protect industries in the United States from unfair foreign competition. Below is an excerpt from the article.
After reaching a zenith of 78 new complaints and ancillary proceedings in 2011, Section 337 activity has leveled off at an average of 51 new cases annually from 2012-2015, which is comparable to its annual average of 48 new cases in 2008-2010. Various factors may have caused the fluctuation in Section 337 activity. The U.S. Supreme Court’s 2006 eBay decision, which heightened the standard for obtaining an injunction in a patent infringement case in district court, may have started driving patentees to the ITC, where an injunction (in the form of an exclusion order) is the standard remedy. Complaint filings likely spiked in 2011 due to the smartphone wars, and then returned to a more normal level as those disputes were resolved. The number of complaints could have remained higher except . . .