ITC Substantively Amends its Rules of Practice and Procedure Governing Section 337 Investigations

Amended Pleadings

The ITC amended several aspects of § 210.14 of the Commission Rules, which governs amendments to pleadings and notice of investigation. Amended paragraphs (a) and (b)(1) of § 210.14 now clarify that any proposed amendment to the complaint and notice of investigation that introduces an additional unfair act or an additional respondent must comply with the content requirements of § 210.12(a). Thus, an amendment to add a cause of action under section 337(a)(1)(A) to an investigation instituted under section 337(a)(1)(B) of that Act is now required to contain all of the information required in the relevant portions of § 210.12(a). This amendment helps ensure adequate notice of the scope of any substantive amendments to the pleadings and to provide the presiding administrative law judge and the Commission with the information needed to determine whether good cause exists to allow the proposed amendment.

The amendment also obligates the complainant to serve the motion to amend the complaint and notice of investigation on any new proposed respondent and on all current respondents and requires the Commission to serve the amended complaint and notice of investigation on any new respondent and the embassies of the relevant foreign countries after the Commission determines to affirm or not review an initial determination granting the motion.

For responses to amended pleadings, amended § 210.14 now clarifies that respondents must respond within 10 days of the service of the order granting amendments to the complaint, or of the Commission determination affirming or not reviewing an initial determination that grants a motion to amend the complaint and/or notice of investigation.

Depositions

Previously, the Commission Rules did not specify the maximum permissible length of a deposition. Amended § 210.28 now aligns the Commission Rules with Federal Rule of Civil Procedure 30 by limiting the duration of a fact deposition to one day of seven hours on the record. The presumptive seven-hour time limit applies regardless of whether the deponent requires translation. The new rule allows for parties to agree to different timing for depositions and requires the presiding administrative law judge to grant additional time as needed.

The Commission further amended the rule to provide for a total of 20 fact depositions, regardless of how many respondents are named in the case. The amendment does not change the presiding administrative law judge’s authority to increase the number of fact depositions allowed on a showing of good cause by any party.

Responses to Requests for Production

As with the procedure for depositions, amended § 210.30 brings the Commission Rules more into line with the Federal Rules of Civil Procedure. Like Federal Rule of Civil Procedure 34, amended § 210.30 now requires the objecting party to disclose whether it is withholding documents.

Litigation Funding

In response to proposed amendments to § 210.12 governing complaints, commenters suggested a further amendment requiring parties to disclose the existence of third-party litigation funding. This proposal was made to address the rise of litigation funding in district court patent litigation, and to help the Commission accurately assess conflicts created by third-party funding. While the Commission declined to include any third-party litigation funding amendments at this time, it may consider it in further rulemakings.