R-''Requests to stay ITC Investigations Pending Reexamination Of The Patents-In-Suit''

Pursuant to 19 U.S.C. § 1337(b)(1), "[t]he Commission shall investigate any alleged violation of this section" and "conclude any such investigation and make its determination under this section at the earliest practicable time after the date of publication of notice of investigation." The Commission, however, has authority to stay an investigation and has done so on a case-by-case basis.1 Nonetheless, this authority is expected to be used sparingly and only "in the most compelling and appropriate circumstances."2

Invoking such authority, respondents have sought often to suspend Section 337 investigations by filing motions to stay based on parallel patent reexaminations at the U.S. Patent and Trademark Office ("PTO"). Indeed, as one administrative law judge ("ALJ") has noted, "[w]hether to stay an investigation pending reexamination by the USPTO is a thorny issue that lately has become an all too familiar practice before the [Commission]."3 Like cases in district court,4 Section 337 investigations may proceed, despite concurrent reexamination of the patents at issue.5 This article surveys the Commission's treatment of requests to stay Section 337 investigations pending the PTO's reexamination of the patents-in-suit. More particularly, it identifies factors that led to decisions to stay or not to stay recent investigations based on concurrent reexaminations.

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