When ITC Domestic Industry Is 'Being Established'

This article (originally published in Law360.com) examines economic considerations that are relevant to an "in the process of being established" domestic industry claim, including:

The legislative history and the newly proposed Advancing America’s Interests Act (H.R. 8037);
The emergence of a two-part test for a complainant seeking to establish an “in the process of being established” claim;
An economic framework for an examination of this type of claim; and
Evolving case law surrounding the topic.

The article also addresses the nexus requirement and possible allocation methodologies, discusses conducting a significance or substantiality analysis, and illustrates the potential to request a reporting requirement within the context of an “in the process of being established” domestic industry claim.

This is an extract from Law360.com, first published September 28, 2020. The whole publication is available at https://www.law360.com/ip/articles/1312662/when-itc-domestic-industry-is-being-established-

"The domestic industry requirement at the U.S. International Trade Commission sparks many a debate among the legal community. Is the requirement an imposing moat or a welcoming yellow brick road to relief?

On Aug. 14, H.R 8037, the Advancing America's Interests Act, was introduced in the U.S. House of Representatives for the purpose of amending Section 337 of the Tariff Act of 1930 with respect to requirements for domestic industries, and other purposes.¹ This legislation aims to "ensure the International Trade Commission (ITC) is not misused by patent licensing entities" and would update the domestic industry standard.²"

Footnotes:

1: Advancing America's Interest Act, H.R. 8037, 116th Congress (2020) (available at: "https://delbene.house.gov/uploadedfiles/delben_041_xml_-_for_introduction.pdf); Section 337 of the Tariff Act of 1930 (19 U.S.C. 1337).

2: See, https://delbene.house.gov/news/documentsingle.aspx?DocumentID=2645; Advancing America's Interest Act, H.R. 8037, 116th Congress (2020).