Why Patent Assertion Entities Are Transitioning To The ITC

Some practitioners and academics perceive a growing trend in patent infringement suits brought by patent assertion entities (“PAEs”) in the U.S. International Trade Commission. For example, in 2012, Colleen Chien, a professor at the Santa Clara University School of Law testified before the House Subcommittee on the Judiciary that “PAEs and product-producing companies alike have flocked to this once-obscure trade agency.” She also noted that today “nearly every patentee is a potential ITC complainant and nearly every patent defendant is a potential ITC respondent.” While to say that there is a dramatic shift would be an overstatement, some statistics do seem to suggest a moderate shift. For example, in the ITC, PAEs initiated five investigations against 18 respondents in 2010, 16 investigations against 140 respondents in 2011, and 12 investigations against 88 respondents from January through Oct. 10 of 2012. What may be motivating this perceived strategic shift in venue? This article examines some of the factors that may be contributing to PAEs favoring actions in the ITC rather than in district court.