Minimizing Your Risk of Being Sued Before the U.S. International Trade Commission

2025 Summer Associate Minji Kwak contributed to this article.

The International Trade Commission (ITC) is an independent U.S. federal agency that oversees issues including IP enforcement, anti-dumping, and tariffs. A finding of infringement at the ITC can result in exclusion orders and cease and desist orders of products imported into the United States that are found to infringe U.S. patents. This is a significant penalty for any company that manufactures its products outside the United States and sells to the U.S. market because it necessarily excludes importation of goods into the United States. Moreover, ITC investigations have relatively accelerated timelines, with most investigations concluding within two years. As a result, being sued at the ITC is greatly disruptive to day-to-day business operations during the investigation due to the broad scope of discovery permitted and fast timeline of the investigation. It also risks results that can harm the company’s business operations and expectations and cause uncertainty with suppliers and customers. Therefore, businesses may wish to avoid having to respond to a complaint for ITC investigation from the outset. This article will discuss signs that an ITC litigation may be forthcoming, as well as strategies to minimize the risk of being sued in the ITC.

There are several factors that may increase a company’s likelihood of being called into the ITC as a respondent. The first is overseas manufacturing and subsequent importation of products into the U.S., which gives the ITC jurisdiction. Entering an aggressive industry or one with few suppliers also increases the chances of being named a respondent. Markets with few suppliers tend to be highly litigious and those seeking to make waves in the electronic or mechanical industry should be especially cautious.[1] Second, prior or ongoing IP enforcement campaigns in an industry—particularly by a non-practicing entity—could also be a sign that ITC litigation may be forthcoming. When evaluating this probability, keep a close eye on the litigation activity of competitors. For example, if there are signs of an IP enforcement campaign against your competitors, the district court cases involving your competitors are stagnant or do not appear to be successful in exerting pressure to reduce competition, or if an exclusion order would be particularly impactful against a competitor, there is a greater chance that the patent owner may wish to pursue ITC litigation.

The following suggestions are ways that companies can minimize the risks discussed above:

1. Be proactive in looking out for potential litigation coming your way. Litigation is rarely a surprise. For example, potential complainants often send out letters before pursuing ITC litigation. This is true even for non-practicing entity campaigns.
2. Consider the locations of your and your suppliers’ manufacturing sites. Be mindful of how the ITC may have jurisdiction over you. Moving manufacturing to the United States will bring a company out of the ITC’s jurisdiction, but this is financially and logistically not feasible for many companies. Also, companies with U.S. manufacturing may still be sued in U.S. district courts.
3. Have your own strong patent portfolio. Having strong patents of your own enables you to engage in (or threaten) retaliatory actions, which exerts pressure on the complainant. Competitors often monitor each other’s IP portfolio so having a strong IP portfolio may help deter litigations, although non-practicing entities are unlikely to be deterred because they typically do not manufacture goods. Companies should think creatively about possible retaliatory actions, which can come in the form of filing suit in foreign courts or other non-litigation business solutions. Companies should consider exploring options for retaliatory actions if they expect to be sued.
4. Assess the asserted patents and consider filing patent office review proceedings quickly. Patent office review proceedings such as inter partes reviews (IPRs), post-grant reviews (PGRs), and ex-parte reexaminations at the U.S. Patent and Trademark Office (USPTO) allow parties to challenge the validity of a U.S. patent. These proceedings focus on substantive arguments, have limited discovery requirements, and proceed on a relatively short timeframe. “Pocket” IPRs, PGRs, or re-examinations—when petitions for patent office review proceedings are prepared but not yet filed—can be utilized to put you in a better negotiating position.
5. Explore early exit programs. Sometimes the ITC allows for cases to be decided on a single issue, such as patent eligibility, g., 35 U.S.C. § 101. Situations like early determinations provide options that could allow you to exit ITC investigations as early as 100 days into the case and save expenses.
6. Work with experienced counsel. Part of the reason complainants file in the ITC is to catch respondents off guard with the accelerated schedule characteristic of the ITC. There is not a lot of time to develop thorough defenses and get evidence into the record, so it is invaluable to have counsel that has expertise in navigating the ITC landscape.
7. Consider the redesign options. Where a company is aware of the specific patents that may be asserted against it, you may want to consider exploring re-design options for the potentially accused product. However, developing a redesign is often a resource-intensive process, depending on the patent and technology involved, and may not be a practical or effective use of internal resources before a cease and desist letter has been received.

[1] 61% of ITC investigations involve electronics patents and 27% include mechanical patents.