The number of intellectual property cases filed at the International Trade Commission in fiscal year 2012 fell by 30 percent, leading some to wonder if the agency's allure as the latest IP hotspot is fading.
In fiscal year 2012, just 48 cases were instituted, compared with a record 70 cases brought under Section 337 of the Tariff Act of 1930 in FY2011.
The difference in part can be attributed to the smartphone patent wars between Apple Inc. and Android phone makers Samsung Group, Motorola Inc. and HTC Corp. Suits and countersuits between the companies peaked in 2011 but have tapered off somewhat.
For example, Apple was involved in 10 ITC cases in 2011 as a plaintiff or defendant, versus seven in 2012. Further, Apple didn't initiate any suits in 2012 but instead has been strictly on the defensive.
HTC had the dubious honor of being sued more often at the ITC than any other company this year. The Taiwanese smartphone and tablet manufacturer was named in eight suits.
By historical standards, the 48 cases instituted in FY2012 is still a lot – more than any other year except 2011 and 2010, when there were 51 new cases. In 2009, 29 new cases were filed.
An ITC spokeswoman declined comment on the agency's caseload.
Fish & Richardson partner Ruffin Cordell, a leading ITC practitioner, said he was "a little surprised" by the 2012 tally. "But I would not read too much into the case count," he said. "In my experience, the commission seems as busy as they have ever been, and is deciding some of the most important cases in the country."
Oblon, Spivak, McClelland, Maier & Neustadt partner Eric Schweibenz agreed. "The long-term trend still suggests that Section 337 filings at the ITC will continue to increase," he said, noting that a recent ITC study showed that the number of new Section 337 investigations has increased by more than 530 percent from FY 2000 to FY 2011.
Adduci, Mastriani & Schaumberg name partner Tom Schaumberg added that "Section 337 cases, when viewed in their historical context, are continuing to increase because of the advantages in speed, expertise and jurisdictional reach of the ITC."
The ITC's goal is to resolve cases in 16 months. But there are signs that the agency's six administrative law judges have had problems keeping up with the caseload. Last fall, for example, Judge Theodore Essex pushed back a target date for his ruling in a dispute between Apple and Motorola by six weeks due to his "increasingly busy" docket.
Aside from high-profile smartphone cases, matters before the ITC in 2012 include bread-and-butter suits with captions like "Integrated Circuit Packages Provided with Multiple Heat-Conducting Paths and Products Containing Same," pitting the Industrial Technology Research Institute against LG Electronics, or "Toner Cartridges and Components thereof," brought by Canon Inc. against two dozen defendants, companies with names like Zhuai Rich Imaging Technology Co.
The case involving the most parties is 337-TA-814, a fight over GPS navigation systems brought by Beacon Navigation GmbH in Switzerland against every major car maker in the world. Lawyers from firms including Quinn Emanuel Urquhart & Sullivan; Hogan Lovells; Adduci Mastriani; Crowell & Moring; Kenyon & Kenyon; Fish & Richardson; Steptoe & Johnson; Finnegan, Henderson, Farabow, Garrett & Dunner; Dickstein Shapiro; and Butzel Long Tighe Patton are representing car companies in the matter.