Addressing Default Trends in Patent-Based Section 337 Proceedings in the United States International Trade Commission

Section 337 of the Tarif Act of 1930 empowers the United States International Trade Commission to investigate imports to ensure imports do not infringe on U.S. trademarks. The Commission permits patent, copyright, and trademark owners to notify the Commission of possibly infringing imports and to obtain exclusion orders that prevent importation of products that infringe their intellectual property. The total number of investigations increased from 1996 to 2005, yet the proportion of respondent defaults rose as well. The increase in defaults suggests there is some systemic difficulty in ensuring full participation. This Note argues that the res judicata effects of particular outcomes in patent-based investigations may skew respondents’participationin centives. To recalibrate respondent participation incentives and spread participation costs more equitably, this Note proposes respondent class certification in patent-based section 337 investigations as a procedural alternative to intervention and mass joinder The proposed respondent class certification would also require bifurcation be available because, while many patent issues apply generally to each member of the proposed respondent class, some issues require an individualized determination for each respondent.