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INTERNATIONAL TRADE COMMISSION 

PATENT LITIGATION 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

COURTS, INTELLECTUAL PROPERTY, 

AND THE INTERNET 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

APRIL 14, 2016 

Serial No. 114–67 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

LAMAR S. SMITH, Texas 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

MIMI WALTERS, California 

KEN BUCK, Colorado 

JOHN RATCLIFFE, Texas 

DAVE TROTT, Michigan 

MIKE BISHOP, Michigan 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SCOTT PETERS, California 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET

DARRELL E. ISSA, California, Chairman 

DOUG COLLINS, Georgia, Vice-Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

LAMAR S. SMITH, Texas 

STEVE CHABOT, Ohio 

J. RANDY FORBES, Virginia 

TRENT FRANKS, Arizona 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

BLAKE FARENTHOLD, Texas 

RON DeSANTIS, Florida 

MIMI WALTERS, California 

JERROLD NADLER, New York 

JUDY CHU, California 

TED DEUTCH, Florida 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SCOTT PETERS, California 

ZOE LOFGREN, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

JOE KEELEY, Chief Counsel 

JASON EVERETT, Minority Counsel 
(III) 

C O N T E N T S 

APRIL 14, 2016 

Page 

OPENING STATEMENTS 

The Honorable Darrell E. Issa, a Representative in Congress from the State 

of California, and Chairman, Subcommittee on Courts, Intellectual Property, and the Internet .......................................................................................... 1 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Ranking Member, Subcommittee on Courts, Intellectual 

Property, and the Internet .................................................................................. 3 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 5 

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Chairman, Committee on the Judiciary ................................. 53 

WITNESSES 

Deanna Tanner Okun, former Chairman, International Trade Commission, 

and Partner, Adduci, Mastriani & Schaumberg, LLP 

Oral Testimony ..................................................................................................... 7 

Prepared Statement ............................................................................................. 9 

John Thorne, Partner, Kellogg, Huber, Hansen, Todd, Evans & Figel, PLLC 

Oral Testimony ..................................................................................................... 25 

Prepared Statement ............................................................................................. 27 

Mark L. Whitaker, Partner, Morrison & Foerster LLP 

Oral Testimony ..................................................................................................... 34 

Prepared Statement ............................................................................................. 36 

Fiona M. Scott Morton, Theodore Nierenberg Professor of Economics, Yale 

School of Management 

Oral Testimony ..................................................................................................... 44 

Prepared Statement ............................................................................................. 46 

Thomas L. Stoll, Principal, Stoll IP Consulting 

Oral Testimony ..................................................................................................... 54 

Prepared Statement ............................................................................................. 56 

Dominic Bianchi, General Counsel, United States International Trade Commission 

Oral Testimony ..................................................................................................... 60 

Prepared Statement ............................................................................................. 62 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable Darrell E. Issa, a Representative in 

Congress from the State of California, and Chairman, Subcommittee on 

Courts, Intellectual Property, and the Internet ................................................ 82 

Additional material submitted by the Honorable Darrell E. Issa, a Representative in Congress from the State of California, and Chairman, Subcommittee on Courts, Intellectual Property, and the Internet ......................... 88 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

International Trade Commission 337 Statistics Report ....................................... 94 
Page

IV 

Response to Questions for the Record from Deanna Tanner Okun, former 

Chairman, International Trade Commission, and Partner, Adduci, 

Mastriani & Schaumberg, LLP ........................................................................... 98 

Response to Questions for the Record from John Thorne, Partner, Kellogg, 

Huber, Hansen, Todd, Evans & Figel, PLLC ..................................................... 126 

Response to Questions for the Record from Mark L. Whitaker, Partner, Morrison & Foerster LLP .............................................................................................. 159 

Response to Questions for the Record from Fiona M. Scott Morton, Theodore 

Nierenberg Professor of Economics, Yale School of Management .................... 165 

Response to Questions for the Record from Thomas L. Stoll, Principal, Stoll 

IP Consulting ........................................................................................................ 167 

Response to Questions for the Record from Dominic Bianchi, General Counsel, 

United States International Trade Commission ................................................ 174 
(1) 

INTERNATIONAL TRADE COMMISSION 

PATENT LITIGATION 

THURSDAY, APRIL 14, 2016 

HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Subcommittee met, pursuant to call, at 10 a.m., in room 

2141, Rayburn House Office Building, the Honorable Darrell E. 

Issa, (Chairman of the Subcommittee) presiding. 

Present: Representatives Issa, Goodlatte, Collins, Franks, Jordan, Marino, Farenthold, DeSantis, Walters, Nadler, Conyers, Lofgren, Johnson, Chu, DelBene, Jeffries, and Peters. 

Staff Present: (Majority) Vishal Amin, Senior Counsel; Eric Bagwell, Clerk; and (Minority) Jason Everett, Minority Counsel. 

Mr. ISSA. The Committee will come to order. The Subcommittee 

on Courts, Intellectual Property, and the Internet will come to 

order. Without objection, the Chair is authorized to declare a recess 

of the Subcommittee at any time. We welcome everyone here today 

to a hearing specifically on the role of the International Trade 

Commission (ITC) in patent litigation. 

Imagine, if you will, a scenario under current law. A foreign patent assertion entity has their lawyer file a lawsuit against a domestic entity in order to have them take a license and pay some 

type of royalty. Under current law, once receiving even one dollar 

in royalty, they then sue a U.S. company for patent infringement 

in Federal court, and concurrently file a case in the ITC. 

The defendant also files an interparty review before the Patent 

and Trademark Office, alleging, in validity, or at least substantial 

differences between the assertion and the product being produced. 

You now have, under current law, three separate adjudications at 

the same time. Under the law—and by the way, you do not have 

to imagine, this has happened—there can be discovery, oft times it 

is simple form discovery by the plaintiff; and for purposes of my 

opening statement, plaintiff and troll will be interchangeable. 

Now, under current law, the PAE could succeed in getting an exclusion order against the defendant. Well, the alleged infringer 

could win, at PTAB, the claims that the patent is ruled invalid. But 

still, under current law would be prevented from manufacturing 

that product, since the exclusion order would be in effect until the 
2 

Federal circuit gets around to reversing the ITC. And under current law, the Federal circuit reversals, you could be back in district 

court going through the whole trial process again. Again, if the 

PTO only rules that some patent claims are invalid or limited, but 

allows a few limited patent claims to remain, you get to do this all 

over again. 

The International Trade Commission exists for one purpose: it is 

a necessary exclusion organization that protects American industry, industry being a broad term, from unfair competition; from, in 

fact, products coming through our border for a myriad of reasons. 

It is a protectionist trade organization by definition. And I use 

that not in a pejorative way, but I use it in a fair way; that in fact, 

often, U.S. industries need protection from unfair trade practices. 

When, in 1988, patents became part of it, most envisioned that 

you were simply talking about an entity that could not be reached 

in the Federal courts, that was sending in a product that was a 

knockoff of an American patent. And in that situation, it would be 

no different than, in fact, if you were sending counterfeit goods into 

the United States with somebody else’s trademark on it. 

The ITC exists, and will continue to exist, for those kinds of protections under any reform. However, in an era in which this Committee, on a broadly bipartisan basis, has recognized that troll activity needs to be prevented, we need to recognize that non-practicing entities are using the ITC not often, but often effectively, to 

extort additional dollars. 

Plus, to be candid, it is our responsibility to preserve the constitutional right of an American entity to have their claims, whether plaintiff or defendant, adjudicated within the court constitutionally established, or often called an Article III court. Under the 

current law, Article I adjudication is occurring far too often. And 

not by the PTO, but rather, by the ITC. 

I will just touch for a moment on two notable events. Several 

years ago, Kodak v. Apple in the ITC. Now there was a foreign importer somewhere there; an entity that could not be reached; an entity who had assets that were beyond the Federal court. The problem is, I cannot figure out which one it would be. Kodak was not, 

in fact, a domestic company to any greater extent than Apple. Both 

of them relied on extensive use of imported parts. Oddly enough, 

Apple had enough cash in the bank to buy Kodak in a moment’s 

notice. And yet, Kodak went to the ITC asserting that they needed 

to get injunctive relief, or, if you will, trade relief, against Apple, 

as though the Federal court could not give them sufficient remedy. 

Prior to the eBay decision, we could all have had a discussion 

about—an injunction is an injunction, whether it is called an exclusion or not. And in the 1990’s, when I found myself in the ITC and 

in Federal court, they really were a question of how fast you got 

to the question of whether or not you were guilty and whether or 

not you were—the patent was valid, and whether or not, quite 

frankly, you were going to be enjoined. But that is not the case 

today. 

Post-eBay, it is not an effective or honest case to exclude a product that ultimately, if they failed in district court, would not be excluded, but rather, would be adjudicated for monies. Obviously, in 
3 

the case of Apple, Apple could have not only paid all the damages, 

but could have bought Kodak on the open market. 

Second case, one that Congressman Schiff and I both participated in with great frustration, was Broadcom v. Qualcomm in the 

ITC. Now, these were two companies whose CEOs could meet, 1 

hour drive each, away from their corporate headquarters. Located 

less than 100 miles apart, they found themselves in the District of 

Columbia, in court, 3,000 miles—2,700 miles away. Why? Was it 

because Broadcom believed that Qualcomm, a company listed on 

the S&P 500, was unable to pay damages? No. It was simply because the leverage of the ITC allowed them to go after, in this case 

not even Qualcomm directly, but products being imported bearing 

chips. 

The merits of this case do not particularly make any difference. 

The question is, should Broadcom and Qualcomm been able to be 

in the ITC, while simultaneously in the district court? They were 

not in the ITC because they wanted or needed an exclusion order 

for its own sake. They were in the ITC because they wanted to use 

it as part of the leverage, hoping it would move quickly and bring 

about a settlement that they would take perhaps longer to get in 

district court. But ultimately, the money damages would have been 

the same. 

This Committee has exclusive jurisdiction over patents. This 

Committee has exclusive jurisdiction over trademarks. This Committee has exclusive jurisdiction over the Article III courts. This 

Committee has exclusive jurisdiction over the bankruptcy courts. I 

do not consider that jurisdiction a jurisdictional fight. 

In fact, I believe that the ITC has a reason to exist. It appropriately is a trade activity, and should be in the Ways and Means. 

But it is my hope that, through this hearing and likely legislation, 

that we can, in fact, straighten out a situation in which, if you 

should be in one court, another court, or in fact, at the PTO, that 

you not be simultaneously in all three, or that trolls be able to leverage one against the other. With that, I look forward to our witnesses and recognize the Ranking Member for his opening statement. 

Mr. NADLER. Thank you, Mr. Chairman. Today we consider patent litigation at the International Trade Commission. The ITC is 

not widely known or understood outside of a narrow group of practitioners and interested parties. But it plays an important role in 

shaping trade policy in the United States. Among its duties is to 

adjudicate cases involving imports that allegedly infringe intellectual property rights, and to potentially exclude such products from 

entering the United States. 

Because the ITC is becoming an increasingly popular venue for 

bringing patent infringement claims in recent years, it is appropriate for this Subcommittee to examine how the ITC handles patent litigation, and whether any legislative or regulatory changes 

are warranted. 

When we last considered this topic in 2013, we did so in the context of the ongoing crisis of abusive patent litigation. We heard testimony that patent trolls had identified the ITC as a friendly 

forum, and were flooding the system with abusive and frivolous 
4 

claims, particularly after the Supreme Court’s 2006 decision in 

eBay v. Merck Exchange. Prior to the eBay case, injunctions in patent cases were viewed 

as almost automatic. However, the court ruled that patent holders 

in district court cases must satisfy the same four-factor test applied 

to other plaintiffs seeking an injunction, including showing that 

monetary damages are insufficient to compensate the plaintiff, and 

that the plaintiff will suffer irreparable harm without an injunction. 

By some estimates, the eBay standard reduced the chances of an 

injunction being granted to just 1 in 3. Concerns were raised that, 

after this decision, non-practicing entities, or NPEs, were flocking 

to the ITC, which does not apply the eBay analysis, and where an 

exclusion order is almost automatic if infringement is found. 

The drastic step of an exclusion order can serve as a death knell 

for a business. As manufacturing has increasingly moved overseas 

in recent years, even an American company may find its products 

excluded from the U.S. if they are found to be infringing. Because 

the consequences of having one’s product prevented from being imported into the U.S. are so great, NPEs were exploiting this risk 

to pressure defendants into settling even frivolous cases. 

Since we last considered this issue, the ITC has taken some steps 

to attempt to address some of the concerns over NPEs and abusive 

litigation. For example, as ITC case law continues to evolve, NPEs, 

whose entire business model depends on litigation, may find it 

more difficult to establish that there is a domestic industry that 

would be threatened by the importation of a particular product, as 

is required under Section 337 of the Tariff Act. 

In addition, the ITC has begun a pilot project, which it proposes 

to codify and expand, allowing the Commission to identify potentially case dispositive issues when the investigation begins, and direct the presiding judge to issue an initial determination of those 

issues within 100 days. If used to its full extent and made permanent, this may help weed out weak claims at an early stage and 

discourage many others from even being filed. Indeed, recent statistics indicate that filings by NPEs has dropped from its peak, between 2008 and 2011. 

I hope our witnesses will help us to understand whether this reduction in filings is just temporary, or whether the ITC has adequately addressed the concern over abusive litigation through these 

and other measures. And if further action is necessary, does the 

ITC have sufficient tools at its disposal? Or is Congressional action 

required? I also look forward to a discussion of whether patent litigation at the ITC serves as a complement to district court litigation, or whether they conflict with each other. 

As an independent, quasi-judicial Federal agency focused solely 

on trade, the ITC operates under a different set of rules, with a different mandate, than Article III courts. What sorts of incentives do 

plaintiffs have to pick district court or the ITC as an appropriate 

forum, or to file parallel litigation in both arenas? Are defendants 

being treated fairly in this process? And what are the implications 

for developing a uniform understanding of patent law, when it is 

being administered and interpreted by two different judicial bodies? Are any reforms needed? And if so, should Congress enact leg-
5 

islative changes? Or should they be accomplished through the regulatory process? I look forward to hearing from our witnesses about 

these and other important matters, and I yield back the balance of 

my time. 

Mr. ISSA. I thank the gentleman. We now recognize the Ranking 

Member of the full Committee, Mr. Conyers, for his opening statement. 

Mr. CONYERS. Thank you, Chairman Issa. And welcome to—we 

only have six witnesses today, so I guess we will have to do the 

best we can with the subject. 

Mr. ISSA. John, there are four more panels. Are you going to 

come back? 

Mr. CONYERS. Oh, oh boy. We welcome you all here today for this 

discussion. We think it is an important one, because it gives us an 

opportunity to study how the International Trade Commission handles patent disputes, and whether it sufficiently protects American 

innovation. 

We should focus on whether the Commission produces fair results to litigants, and, most importantly, whether these results are 

beneficial to the American consumer. Congress established the 

Commission as an independent, quasi-judicial, Federal agency to 

provide non-partisan counsel to the legislative and executive 

branches of government. It is charged with protecting United 

States consumers and industry from unfair foreign trade practices, 

and has the power to issue cease and desist and exclusion orders. 

For example, patent holders who believe that imported products 

infringe their patents may file a complaint with the Commission, 

pursuant to Section 337 of the Tariff Act. Some are concerned, however, that as a result of the Commission’s patent dispute resolutions, there have been adverse consequences to American consumers in the form of higher prices, for example. 

I am particularly concerned that some large, monopolistic players 

actively collect patents as a way to concentrate their market power, 

and to eliminate competitors under the watch of the Commission. 

It is imperative that our Nation’s patent system protect American 

innovation and foster enterprise, but not at the expense of allowing 

the system to be distorted to favor players with the largest litigation budgets. 

Also, we should continue to examine whether the increase in Section 337 investigations is due to abusive behavior by non-practicing 

entities and patent assertion entities. There are concerns that 

these entities acquire patents solely for the purpose of litigation before the Commission, to threaten United States-operating companies with exclusion orders that they otherwise may not obtain in 

Federal court. 

In support of these concerns, some cite the fact that Commission 

filings spiked in 2011, and that a large percentage of these cases 

proceeded simultaneously in Federal district court. While a patent 

holder is not barred from pursuing a claim before the Commission 

and the Federal courts simultaneously, some argue this presents 

the problem of inconsistent results. 

At this point, however, we know that, based on the Commission’s 

own statistics, the number of investigations instituted has dropped, 

and it appears the number of filings by non-practicing entities is 
6 

also lower. The Commission appears to be taking effective steps to 

address the problem. 

And finally, any legislative changes to Section 337 should avoid 

unintended consequences, particularly with respect to any adverse 

impact they may have on American innovators. Any such changes 

should also be considered in light of the Supreme Court’s 2006 decision in eBay v. Merck Exchange, which made it more difficult for 

patent holders to receive injunctive relief in Federal district court. 

The ramifications of that decision could be driving an increase in 

Commission filings, for instance. Although I am skeptical of current proposals to curb abusive patent litigation by reforming the 

Commission legislatively, I do look forward to the hearing from today’s witness. And I thank the Chairman for holding this hearing. 

I yield back any time remaining. 

Mr. ISSA. I thank the gentleman. All other Members will have 5 

legislative days in which to place their opening statements in the 

record. 

Today we have a distinguished panel of six witnesses, as the 

Ranking Member said. These witnesses’ written statements will be 

entered in the record in entirety, and I ask that the witnesses summarize, in approximately 5 minutes, their opening statements. 

For those who have not testified before, the lights are just like 

a traffic light. And we ask you to please go as fast or slow as you 

want on green, rush through the intersection on yellow, and stop 

on red. Before I introduce the witnesses, it is the Committee’s 

standing rule that all witnesses be sworn. 

So would you please all rise, and raise your right hand? Do all 

of you solemnly swear or affirm that the testimony that you are 

about to give will be the truth, the whole truth, and nothing but 

the truth? 

Thank you, please be seated. Let the record reflect that all witnesses answered in the affirmative. 

Our witnesses today include the former chairwoman of the International Trade Commission, Deanna Okun, partner at Adduci and 

Mastriani and Schaumberg, LLP. Boy, that is a good one. But they 

get better. 

The second one is—and welcome—John Thorne, partner at Kellogg, Huber, Hansen, Todd, Evans and Figel, PLLC. 

And next we have Mr. Mark Whitaker, partner at Morrison and 

Foerster, thank you. 

Dr. Fiona Scott Morton, professor of economics at the Yale School 

of Management; Mr. Thomas Stoll, principal of Stoll IP Consulting, 

LLC, and Mr. Dominic Bianchi, general counsel at the International Trade Commission. 

So I want to welcome all of you. I recognize that each of you, perhaps except for the government witnesses, have both your written 

statements and individual testimony. I would suggest that, if you 

want to deviate from your written statement, remember your entire 

written statement will be in the record. But I would ask that you 

remain within the 5 minutes. 

With that, Ms. Okun. 
7 

TESTIMONY OF DEANNA TANNER OKUN, FORMER CHAIRMAN, 

INTERNATIONAL TRADE COMMISSION, AND PARTNER, ADDUCI, MASTRIANI & SCHAUMBERG, LLP 

Ms. OKUN. Thank you, Chairman Issa, Ranking Member Nadler, 

and other Members of the Subcommittee. I welcome the opportunity to testify for you today. I have been privileged to be part of 

the international trade community for more than 25 years. Let me 

reiterate that I appear today in my personal capacity, and not on 

behalf of Adduci and Mastriani and Schaumberg, or any of our clients. And, of course, I do not speak for the Commission or for my 

former colleagues. 

My purpose is to share my perspective based on my 12 years 

serving on the International Trade Commission. I will focus my remarks on a few key points, but will refer you to my written statement. 

First, the ITC is an expert trade agency that provides an effective remedy to combat the pervasive problem of infringing imports, 

providing essential protection to U.S. IPR owners and fostering 

U.S. competitiveness and innovation. 

Second, through its decisions and administrative actions, the ITC 

has sent a clear message that only entities with substantial domestic ties will succeed. The data demonstrate that NPEs rarely file 

cases with the ITC, and that particularly with respect to PAEs, 

they rarely succeed. And it is important to set context. We are talking about a docket of 36 cases this year; and of those 36, 34 of 36 

were brought by manufacturing entities. In 2014, it was 36 of 39. 

At its high water mark in 2011, there were 69 investigations. 

So we are talking about a very small docket, which I say will remain so because of the high threshold to succeed, and because of 

the institutional requirements to be at the ITC. 

Third, the ITC, perhaps because it is small, non-partisan, quasijudicial, has been nimble in addressing litigation issues by pursuing case management and rule changes to reduce the cost and 

burden of litigation. This type of agency activity should be encouraged, not criticized. We want our most innovative companies to 

have more, not fewer, tools to address the very real and costly 

problem of infringement. 

In that respect, Section 337, in my view, is functioning as Congress intended, and recent proposals to amend the statute are unnecessary and likely counterproductive. Moreover, our trading partners increasingly recognize that innovation is the fundamental 

competitive advantage. Countries like China are modifying their 

laws to strengthen IP protection, and the European Union has 

moved toward a unitary patent court. It would send the wrong 

message for the United States to weaken protections at a time 

when U.S. trade negotiators have been working hard to raise IPR 

standards in agreements such as TPP and TTIP. 

Allow me to elaborate briefly. There is a direct link between the 

protection of U.S. IPR and American competitiveness. Constitutionally protected patent rights incentivize investments and innovation, a key engine of economic growth. IP-intensive industries account for more than $5 trillion in value added, or approximately 35 

percent of GDP. 
8 

From a trade perspective, we must have effective border remedies to stop unfairly traded and infringing imports. The ITC 

serves as the front line in protecting domestic industries. As the 

Joint Economic Committee found in 2012, infringement of IPR is 

a pervasive problem that harms companies, consumers, and all levels of government. 

Between 2008 and 2015, approximately 80 percent of the products accused in Section 337 were imported from China. And while 

this hearing is focused on investigations involving patents, Section 

337 also covers other unfair acts, such as copyright, trademark, 

and trade secret laws. Moreover, for many companies, the advantages of expeditious adjudication, experienced ITC judges, in rem 

jurisdiction, and effective remedies at the border, can make the difference in their commercial success. 

The data simply do not support the assertion that the ITC has 

a patent troll problem. Overall, Section 337 filings have decreased 

significantly in the past few years, from what was already a low 

number, particularly compared to district courts. The number of 

cases institute in each calendar year, from 2000 to 2015, has steadily decreased from 69 to 36. Complainants at the ITC are overwhelmingly domestic industries that manufacture a product. 

Moreover, of the 67 exclusion orders issued by the Commission 

in the last 10 years, only four were on behalf of NPEs. The ITC 

is not inundated with frivolous cases, nor is its caseload unmanageable. But that does not mean NPEs—and I do mean NPEs, not 

PAEs—should not have the opportunity to consider the ITC as they 

evaluate their options for protecting their intellectual property. 

Congress acknowledged the critical role of IPR as a source of 

value by expanding Section 337 in 1988 to cover companies making 

a substantial investment in a patent’s exploitation, including engineering, research and development, or licensing. 

Yet over the last 5 years, it has become more difficult to establish a domestic industry and obtain relief and, since 2011, only 

three NPEs have succeeded in establishing a licensing-based domestic industry. I realize, Mr. Chairman, that my red light is coming on, and I hope that, in listening to Mr. Bianchi’s testimony, you 

will hear about the many actions the ITC has taken to help combat 

any type of abuse at the ITC. Thank you. 

[The prepared statement of Ms. Okun follows:] 
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Mr. ISSA. I thank you. And if you had not shortened non-practicing entities and so on with those acronyms, it would have been 

much longer. 

Ms. OKUN. Try that. 

Mr. ISSA. Mr. Thorne. For all the witnesses—— 

Ms. OKUN. Not going to worry about it. 

Mr. ISSA. Yeah, yeah. For all the witnesses here on the dais, of 

course, we are familiar with the acronyms. But to the greatest extent possible, at least once in your testimony, make sure that you 

describe fully, because for the record, a lot of people, including the 

people behind you in the audience, may not know the shortened 

terms. Thank you. Mr. Thorne? 

TESTIMONY OF JOHN THORNE, PARTNER, KELLOGG, HUBER, 

HANSEN, TODD, EVANS & FIGEL, PLLC 

Mr. THORNE. There, I have got my microphone. Mr. Chairman, 

Mr. Ranking Member, and other members of the Subcommittee, 

thank you for inviting me today. 

I have not worked in the government in this area, but I have represented companies on both sides, bringing cases at the ITC, defending cases at the ITC, bringing injunction cases in Federal district court, defending against injunction cases in district court. 

And since the written testimony is going to be submitted, I just 

thought I would summarize a little bit about why, from the private 

point of view, why would somebody bring a case to the ITC, as opposed to going to district court? And as you have seen in the numbers, that both forums are usually available. We did a quick count 

of the cases we believe were NPE cases at the ITC—NPE meaning 

non-practicing entities of the ITC. We did a quick count to see, 

well, how many of those organizations were American companies 

that could have been sued in district court? 

And the answer is almost all of them. And it is something like 

two-thirds of all the cases, not just NPE cases, but all of them, actually have a parallel district court case, as the Chairman pointed 

out at the beginning. 

So you have a choice. You can sue at the ITC, you can sue at 

the district. What are the considerations? I count four. I do not 

know if, in my 5 minutes, I will get through all four, but the first 

one is leverage. Just pure leverage. 

I have an example similar to the one the Chairman opened with, 

similar to the Broadcom case, which I was involved in. My example 

involved one New York company bringing an ITC case against another New York company. One was in Manhattan, the other was 

in Long Island. They were maybe 20 miles apart. They could have 

sued in the eastern district of New York, probably in the southern 

district of New York, maybe other places where they did business. 

But the plaintiff who I represented picked the ITC because its remedy would be uniquely leveraging—if I can use the L word—it gave 

power—if we succeeded in obtaining a recommended exclusion 

order, that would give a lot of leverage. 

Now, the defendant, or the respondent in the case was a cable 

TV company. Most of their business is people installing wires, fiber 

optic cables to homes, and managing central hubs where the TV 
26 

signals come in. They engage with programmers, the Hollywood 

and New York programming. 

So almost all of the American activity of the respondent had 

nothing to do with what we targeted. We targeted the set top 

boxes, which they imported, or some of the components of the set 

top box were imported. We had a patent that covered one of the 

many functions of the set top box. 

So you have got a fairly complicated business doing lots of 

things, but if they want to add a customer, they need another set 

top box; or if a customer’s box breaks, they need to replace the set 

top box. The set top box itself is kind of complicated, many thousands of functions inside it. We had a patent that addressed one 

of the functions. 

The ITC remedy would allow us to stop them adding customers, 

because one of the many functions in the set top box was infringing 

a patent we owned. So we could go to district court, and what I 

think would have happened at district court is, under the eBay 

case, under the normal balancing of equities the district courts conduct, the district court would say, ‘‘Well, I see a harm to the plaintiff. Your patent is being infringed. 

But I see a much greater harm to the defendant because it is got 

a large business that will be disrupted if they cannot get set top 

boxes. In fact, I see a harm to the public because, you know, it is 

basketball season. You want to watch games.’’ And so, if you balance the harms the way a district court does in a normal injunction 

case, I think the district court would have said, ‘‘Well, let’s measure your money damages.’’ You will get money for the patent infringement. Maybe over some period of time, the defendant will be 

required to stop the infringement, but no immediate loss of ability 

to add customers. That would not have been the remedy at district 

court. So where do you get leverage? You get leverage at the ITC. 

Now, I have also brought injunction cases in the district court. 

I brought a case against a startup telephone company, and I won 

a damage remedy for $50 million, and I won an injunction, and I 

then traded the injunction for all the money they had, which was 

quite a bit more than 50 million. I gave a portion of that to intercity educational charities. We were pleased to do a little bit of good 

in the case. But you get leverage with an injunction. That was a 

case where an injunction in district court was deserved, based on 

the facts. But the difference between a damage remedy and injunctive remedy is, there is a lot of daylight there. 

So just briefly, three other reasons that you might consider the 

ITC instead of a district court, as one of former Commissioner 

Okun’s partners advertises, the ITC is less likely to invalidate patents, just—that is in practice. 

The same rules apply, but the ITC tends to throw out a bad patent about half as often as a district court. The ITC will enforce 

standard essential patents. That is a patent that governs a standard. And last, the ITC does not follow what this Congress passed 

in 2011 that says you cannot bring in 30 or 40 or 50 different respondents in a single case. You have to sue them individually in 

district court. Thank you very much. 

[The prepared statement of Mr. Thorne follows:] 
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Mr. ISSA. Thank you. Thanks for your experience. Mr. Whitaker. 

TESTIMONY OF MARK L. WHITAKER, PARTNER, 

MORRISON & FOERSTER LLP 

Mr. WHITAKER. Mr. Chairman and distinguished Members of the 

Subcommittee, thank you for convening this hearing, and for the 

opportunity to testify. It is an honor to speak with you regarding 

this important topic today. I am a partner with Morrison and 

Foerster, and I have practiced before the ITC, district courts, and 

Court of Federal Claims for the past 24 years. I am currently the 

president-elect of the American Intellectual Property Law Association, and serve as a member of the counsel for the ABA section of 

Intellectual Property Law. I appear today in my individual capacity, however, and not on behalf of my firm or any of its clients, the 

AIPLA or the ABA. 

I offer a few litigator’s observations about the ITC’s policies and 

effectiveness in combatting abusive litigation by non-practicing entities, as well as overlapping considerations for litigants bringing 

patent complaints before the ITC and U.S. district courts, and I do 

so referring in part to H.R. 4829, entitled Trade Protection Not 

Troll Protection Act. 

Congress intended that the Commission provide the owners of intellectual property rights with broad protections against a wide 

range of unfair acts of importation. Section 337 is more than a 

mere surrogate to the district court to the application of U.S. patent laws to infringing imports. Instead, it is directed to trade protection that is informed by U.S. patent law. At bottom, Section 337 

protects American jobs and American market strength. 

First, with respect to the domestic industry requirement, complainants already have to establish that a U.S. licensing industry 

exists related to patents being asserted in cases being based on licensing. The proposed legislation would not allow the complainant 

to rely on the licensing activity unless it is able to show that, ‘‘The 

license leads to the adoption and development of articles that incorporate the claimed patent.’’ 

While this change could potentially limit the ability of NPEs to 

use the Section 337 in practice, investigations brought by such entities do not account for many investigations—three in 2014, two 

in 2015, and just one in the first quarter of 2016. Further, prior 

to 2014, entities that manufactured and patented articles in the 

U.S. had a greater burden of proving their domestic industry than 

entities that relied on their U.S. licensing activities. 

As recently confirmed by the Federal circuit, however, establishing a domestic industry based on licensing now requires proof 

of an article that practices the patent in suit. There also needs to 

be shown a nexus between the asserted patent and the U.S. investment in that patent when the domestic industry evidence is based 

on licensing. 

With respect to the public interest issues, the Commission introduced new rules that require complainants to submit a separate 

statement providing specific content with respect to the public interest factors. These rules also provide members of the public, including proposed respondents, an opportunity to respond to the 

complainant’s statement and highlight public interest issues before 
35 

institutions so the Commission can direct the administrative law 

judge to make a full record and recommendation on such issues in 

appropriate cases. 

Next, the proposed legislation would require that a licensee join 

an investigation as a co-complainant in order for licensing activities 

to qualify under the domestic industry prong. This would require, 

for example, a research and development entity, such as a university, to persuade one or more of its licensees to agree to be a cocomplainant in order to make use of Section 337. 

Also, for example, a technology company that licenses some subset of its patent portfolios to others to exploit the technology and 

that does not exploit that particular technology itself because of its 

business structure or economic objectives might be impacted negatively by provisions in a bill that tries to reduce NPE filings at the 

ITC. Remember that Congress intended to open the ITC up to certain non-practicing entities with its 1988 amendments as, ‘‘such a 

change would enable universities and small businesses who do not 

have the capital to actually make good in the United States to still 

have access to the ITC forum for the protection of their rights.’’ The 

Commission also unveiled, as was previously stated, a new 100-day 

program aimed at providing expedited investigations without burden and cost of a full length of investigation. 

For both, legislation may also have the effect of importing the 

eBay injunction criteria into the ITC’s public interest analysis. But 

the Federal circuit has held that the eBay factors are not applicable in these investigations because of the different statutory 

underpinnings for relief before the Commission. 

Moreover, inadequacy of money damages is not applicable in Section 337 investigations, and as such, there is no equitable balancing of purely private remedial interests, and Congress eliminated the need to establish industry in a domestic—to a domestic 

industry and investigation covering the statutory acts. 

As I see that my time has come to an end, I will leave the balance of my statement for the written record. 

[The prepared statement of Mr. Whitaker follows:] 
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Mr. ISSA. And we thank you. Dr. Scott Morton. 

TESTIMONY OF FIONA M. SCOTT MORTON, THEODORE NIERENBERG PROFESSOR OF ECONOMICS, YALE SCHOOL OF 

MANAGEMENT 

Ms. SCOTT MORTON. Thank you very much, Mr. Chairman, Ranking Members and Members of the Committee, for the invitation to 

testify today. I am a professor of economics at Yale, I am a former 

chief economist at the Department of Justice Antitrust Division, 

and I have worked on a number of ITC cases. The basic problem 

here is—— 

Mr. ISSA. Could you place your mike a little closer, please? 

Ms. SCOTT MORTON. Is that better? 

Mr. ISSA. Much better. 

Ms. SCOTT MORTON. Okay. The basic problem here is that the 

ITC duplicates the function of the Federal courts with a different 

process that gives patent holders power in excess of the value of 

their intellectual property. That power is used to extract money 

from implementers. As the Chairman noted earlier, this is mostly 

a U.S.-on-U.S. problem. Companies like Acacia or InterDigital or 

Kodak against Apple or Dell or Microsoft, and this is because, of 

course, we manufacture so many components outside the United 

States, we necessarily are importing them. However, these are not 

trade disputes. 

The problem that I see with the ITC is not the problem of trade 

disputes. Trade disputes, I think, is a very legitimate issue. It has 

been covered by other people. There is nothing wrong with that. 

But the intellectual property leverage here that the ITC gives creates a distortion in U.S. contractual negotiations over intellectual 

property royalties. 

The incentive created by the duplicative but favorable court creates forum shopping, and a lot of business for the ITC. We have 

heard some data today that suggest that this is going down. I 

would say that if you count these cases by both the number of companies involved, and also by whether the patent holder is interested in money damages, rather than whether they fall in a narrow 

bucket called an NPE or a PAE, you would get a much larger number. 

So I am talking about cases where it is not that I have a widget 

and you have a widget and I need to block yours because I am trying to sell mine, but rather I have intellectual property that I 

would like to monetize, regardless of whether I have some widgets 

in another area that is for sale or not, okay? 

So these cases could be pursued in Federal court, and we would 

get an answer that there that was fair and guided by the Supreme 

Court. Note that the business model of licensing does not actually 

want an injunction. If I am licensing, I need you to sell in order 

to take a fraction of your revenue as income for me. So I do not 

actually want the injunction, I want leverage, as Mr. Thorne said. 

And I get less leverage in Federal court because it is harder to get 

an injunction. 

Why is the injunction so useful? It is a huge threat. Suppose my 

royalty ask is 50 cents on a $600 device? The risk of exclusion is 

like a $600 royalty. You cannot sell your device. So the correct roy-
45 

alty you would get in Federal court might be two cents, but I may 

be willing to settle for 50 cents because I do not like the risk of 

losing the whole $600 on my device. 

So the injunction in Federal court is only given when money 

damages are inadequate, and that is rare. And at the ITC, this injunction threat is much easier to get, and so monetizers prefer the 

ITC. This is not about trade. It is about duplicative forum shopping 

in royalty negotiations. This is particularly a problem with standard essential patents, as I focus on in my written testimony. 

These standard essential patents are patents that are part of a 

standard, such as LTE. And in order to make a compliant product, 

such as a phone that works, you must infringe that patent. The 

owner of that patent has agreed voluntarily to charge a friend royalty—fair, reasonable, and nondiscriminatory; so that means that 

they are in the business of collecting money. They are licensing 

their intellectual property. An injunction, again, is not, at the end 

of the day, what they want. 

So these patents are ripe for abuse at the ITC because there is 

no way to avoid using them, and the injunction, again, gives the 

owner a very powerful threat. If the implementer is not participating in the Federal court system, and we have a trade issue, that 

is one thing. 

But I think most of these cases are actually—as previously noted, 

two-thirds of them are already ongoing in the Federal courts; and 

the courts do very well with regular royalty disputes. 

So my policy concern and recommendation is that I think we 

need to eliminate ITC jurisdiction over licensing disputes that can 

safely go to Federal court. This is, as you pointed out, you know, 

the duplication is a waste of everybody’s effort and resources, and 

we would get the right answer in Federal court. 

So I hear today also some attention and—to the process reforms 

at the ITC, as if those would be a solution. We have a 100-day 

process. We have a domestic industry test. These process reforms 

are a poor substitute for getting rid of the incentive in the first 

place. Process is not going to work if you have a determined complainant who has got money that they see that they can get. If you 

eliminate the incentive to go to the ITC in the first place, then you 

do not have to worry so much about process. 

So I really do not think the process reforms will do the job. 

Thank you very much. 

[The prepared statement of Ms. Morton follows:] 
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Mr. ISSA. Thank you. It is now my pleasure to recognize the 

Chairman of the full Committee, Mr. Goodlatte, for his opening 

statement. 

Mr. GOODLATTE. Mr. Chairman, thank you for your forbearance. 

I want to especially thank Mr. Stoll and Mr. Bianchi, to interrupt 

you right as you were ready to go, but I do have to be in two places 

at one time, so I want to share my thoughts. 

Abusive patent litigation is a drag on our economy. Everyone 

from independent inventors to startups to mid- and large-size businesses face this constant threat. Many of these lawsuits are filed 

against small and medium-size businesses, targeting a settlement 

just under what it would cost for litigation, knowing that these 

businesses will want to avoid costly litigation and probably pay up. 

And it is this type of tactic that has made the International Trade 

Commission a potentially attractive venue for patent cases. 

The ITC has at its disposal the ability to issue exclusion orders 

that block the importation of infringing products into the United 

States. Since the ITC is a Federal agency and not an Article III 

court, it makes sense that it is limited to this single remedy. 

In recent years, however, patent assertion entities have used the 

Commission as a forum to assert weak or poorly-issued patents 

against American businesses. It is evident that there are cases that 

have come before the ITC that probably should have been litigated 

exclusively in our U.S. district courts. 

Nowhere is the disharmony between patent law and Article III 

court precedent more on display than the application of exclusion 

orders in technology cases in the ITC. For example, Congress established an important counterbalance to the blunt sanction of the 

exclusion order in the public interest test provided under Section 

337. The statute requires the ITC to consider public health and 

welfare, and the impact of an exclusion order on competition in the 

marketplace before issuing an exclusion order. 

Yet the ITC rarely exercises its responsibility to apply the public 

interest test. This failure to follow the law has particularly damaging results in today’s technology markets in which products are 

often reliant on hundreds or thousands of patents. The ITC has the 

ability to take certain immediate steps within its statutory authority to correct these problems. The following are some steps stakeholders have recommended the ITC take to address this problem. 

First, a return to a pre-2010 domestic industry standard that 

does not allow legal expenses, airplane flights and the like to satisfy the domestic industry requirement. Second, application of the 

public interest test and economic interest test at the beginning of 

Section 337 review for purposes of determining claims consideration, as well as the issuance of exclusion orders. 

And third, based on the public interest and economic interest test 

analysis, articulation of standards that clarify which patent disputes should be adjudicated by the ITC, and those which are more 

properly addressed by U.S. district courts. 

I look forward to hearing from the rest of the witnesses, but I 

will have to read your testimony since I am about to leave. And I 

do want to say that in addition to those remedies, I do think the 

suggestions of Dr. Scott Morton with regard to where the ITC juris-
54 

diction should not exist—and it should be exclusively the jurisdiction of Article III courts—is also worthy of our consideration. 

So I thank you all for your testimony here today, and Mr. Chairman, I yield back. 

Mr. ISSA. Thank you, Mr. Chairman. Mr. Stoll. 

TESTIMONY OF THOMAS L. STOLL, PRINCIPAL, 

STOLL IP CONSULTING 

Mr. STOLL. Good morning, Chairman Issa, Ranking Member 

Nadler, and Members of the Subcommittee. Thank you for inviting 

me to testify today on patent litigation before the International 

Trade Commission. It is an honor to be here today to discuss this 

very important topic. My name is Tom Stoll, and for the last several years I have been advising clients and employers, including 

the ABA’s Intellectual Property Law section, the Boeing Company, 

the USPTO, and the White House on issues relating to IP litigation 

and IP-related legislation, including proposed changes to the laws 

to limit litigation abuse in district courts and the ITC. 

My advice is informed by more than 20 years of IP litigation experience with law firms, the USPTO’s solicitor’s Oofice, as a law 

clerk and staff attorney with the Federal circuit, all in cases filed 

in district courts, the ITC, the Federal circuit, and the U.S. Supreme Court. I would like to emphasize that I am testifying on my 

own behalf today and not on behalf of my current client, the ABA. 

While ITC filings by patent owners certainly spiked in 2011, over 

the last few years the ITC has made great strides in reducing the 

risk that ITC proceedings can be misused. The ITC’s own statistics 

show that the number of investigations instituted has dropped to 

historically consistent numbers, and that the number of filings by 

non-practicing entities is lower than it was before the jump in overall filings. 

To the extent the ITC had a patent troll problem, it appears the 

Commission has addressed it. U.S. patent laws are extremely beneficial to society, by providing the incentive for inventors and companies to invest in the development of groundbreaking new technologies, knowing their investment can be protected, often enabling 

startups and other small companies to secure the funding they 

need to grow. 

The ITC is charged with preventing unfair trade practices, including the theft or unauthorized use of intellectual property. It 

has the extraordinary authority to issue general exclusion orders 

barring all imports that infringe a patent. 

In the U.S. Supreme Court’s 2006 decision in eBay vs. 

MercExchange, the court held that a district court cannot automatically issue an injunction in a patent case. Patent owners, including non-practicing entities, began asserting their patents in the 

ITC with much greater frequency. The ITC had become a more attractive venue for those seeking the threat of an injunction, and 

many argued, was being used to extract unjust settlements. 

Two recent developments, however, have significantly reduced 

the risk that an ITC proceeding based on frivolous claims could be 

used to unjustly extract a settlement. First, the Commission has 

applied the domestic industry requirement much more rigorously. 
55 

Second, the ITC has instituted a 100-day program to quickly dispense with cases that lack merit, and thereby preventing abuse. 

Additionally, recent U.S. Supreme Court decisions significantly 

limiting the scope of patent-eligible subject matter and requiring 

greater clarity and patent claiming may also deter some patent 

owners from filing claims of infringement in the ITC. As a result, 

the number of cases instituted by the ITC has dropped in recent 

years from 69 in 2011 to 36 in 2015. Non-practicing entities were 

the complainants in only two of the 36 investigations instituted last 

year. 

Let me explain how the ITC has changed its application of the 

domestic industry requirement. Under that requirement, a party 

much show that there is a significant or substantial investment in 

a U.S. industry that requires protection. Until very recently, a patent owner could satisfy the requirement simply by establishing the 

substantiality of its economic investment and licensing activities. 

In the last few years, however, the Commission began to require 

more, and the Federal circuit now seems to agree. In Motiva, for 

example, the Federal circuit affirmed the Commission’s finding of 

no domestic industry, stressing that the complainant must show 

that the licensing program was being used to encourage adoption 

and development of articles that incorporated the patented technology. 

In LSI, the Federal circuit again affirmed a Commission determination that a domestic industry did not exist because the complainant’s licensing activities did not relate specifically to articles 

protected by the asserted patent. 

The ITC’s new 100-day program is designed to help companies 

avoid the significant expense associated with litigating a full-blown 

proceeding where the claim is baseless, and to deter those seeking 

to leverage that expense to extract an unjust settlement. It enables 

the Commission to quickly resolve an investigation by requiring 

that the ALJ rule on a dispositive issue, such as lack of domestic 

industry, within 100 days of institution of the investigation. 

These efforts and the resulting reduction, in the number of cases 

that have been instituted in the last few years, appear to have 

gone far to address concerns that the ITC has become an attractive 

forum for patent owners whose cases lack merit, and who seek to 

leverage this proceeding to extract an unjust settlement. I am 

grateful to the Subcommittee for taking the time to conduct this 

hearing and for taking a close look at this important issue. I am 

honored to have been invited to speak with you today, and look forward to answering your questions. Thank you. 

[The prepared statement of Mr. Stoll follows:] 
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Mr. ISSA. Thank you. Mr. Bianchi. 

TESTIMONY OF DOMINIC BIANCHI, GENERAL COUNSEL, 

UNITED STATES INTERNATIONAL TRADE COMMISSION 

Mr. BIANCHI. Mr. Chairman and distinguished Members of the 

Subcommittee, my name is Dominic Bianchi, and I am the general 

counsel of the U.S. International Trade Commission. Thank you for 

inviting me to appear today before you. As Mr. Conyers noted earlier on, the Commission is an independent quasi-judicial Federal 

agency. We are actually more unique than any other independent 

agency or commission that is out there. We do not do policy. We 

do not address policy. That is for Congress and the executive 

branch to do. 

So I want to assure you that the Commission implements the law 

that Congress has passed. We will continue to implement that, 

based on the interpretations by the Federal circuit until Congress 

amends the law. If Congress does amend the law or the Federal 

circuit changes one of our decisions, we will implement that policy. 

In Section 337 cases, however, the Commission sits akin to an 

Article III Court, as mentioned before, in hearing cases. The overwhelming majority of investigations that occur under the Section 

337 before the Commission are based on claims of patent infringement. If a violation is found, as noted earlier, the statute allows for 

only two types of remedies, at the ITC—an exclusion order and/or 

a cease-and-desist order. 

The Commission focuses on conducting expeditious, fair, and 

technically sound decision-making to resolve allegations of intellectual property infringement and other unfair acts. Similar to the 

Federal courts, a Section 337 investigation includes all aspects of 

patent disputes, including topics relating to validity, infringement, 

remedy, and competitive conditions. We apply the same law that 

the district courts do. 

What differentiates the Commission, however, from Federal 

courts is that the Commission does not institute an investigation 

before the sufficiency of a complaint is assessed. This assessment 

includes the agency requesting input from the potential respondents and the public regarding whether there are statutory public 

interest considerations raised by the complaint. At the time of institution, if the Commission determines that there are any particular case-dispositive issues that may resolve the investigation 

within a matter of months, it may place it in an early disposition 

program, as mentioned earlier today. 

Also as you have heard, the Commission has established a practice of responding to community input by initiating a variety of programs to more efficiently and expeditiously bring to a close those 

matters that otherwise would impose undue costs on parties, the 

Commission, and the broader system. 

The Commission also determines whether the public interest considerations warrant the development of a full factual record regarding the statutory public interest factors, and thus it can delegate 

this issue to the administrative law judge for fact-finding. Once the 

investigation begins, the agency develops a complete administrative 

record based on discovery, provides a full and fair opportunity for 

the parties to present testimony and cross-examination at a hear-
61 

ing, and provides the parties with the opportunity to provide written briefs. The Commission staffs its investigatory process with IP 

experts, IP attorneys and qualified ALJs solely dedicated to adjudicating IP cases. 

After the ALJ issues a final, initial determination, the parties 

have the opportunity to petition the Commission for review. Typically, if the Commission determines to review, it will ask the parties to respond to specific questions, including specific questions regarding the public interest factors. 

If the Commission finds a violation and a remedy, and issues a 

remedy, the President of the United States has 60 days to review 

the order and determine whether to disapprove the order on policy 

grounds. Appeals of the Commission’s decisions in Section 337 investigations are made to the U.S. Court of Appeals for the Federal 

Circuit—the same court that reviews patent decisions of the district courts. 

The Commission recognizes the statutory mandate to resolve 

cases at the earliest practical time and has taken a variety of steps 

to do so. These include developing pilot programs, developing new 

procedural rules, and substantial investment in the Commission’s 

electronic record system for case management. The Commission 

routinely seeks input in its processes and diligently considers feedback from stakeholders on ways to improve the processes and procedures. I welcome the Committee’s views. Thank you. 

[The prepared statement of Mr. Bianchi follows:] 
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Mr. ISSA. Thank you. I will now recognize myself for a question. 

And do not turn off your mike, Mr. Bianchi. I will ask you the first 

question. Since I think four of the six witnesses mentioned the pilot 

program: how many cases have been adjudicated under the pilot 

program? 

Mr. BIANCHI. The former—and so, whether there is one case—— 

Mr. ISSA. Is one not the right answer? 

Mr. BIANCHI. Sorry, sir. One is the correct answer under the pilot 

program. Under the previous program before we developed the pilot 

program, there was another case that the Commission essentially 

did. 

Mr. ISSA. Okay. So a lot of talk about a program that has hardly 

ever been used at this point. So I have high hopes for the future 

that it does something, but I noticed nobody talked about the benefits and successes of the program, only that it existed. And I bring 

that up because I want the record to be clear that it is pretty premature to talk about a pilot dismissing cases that are frivolously 

brought at this point. Hopefully, it will be a factor in the near future. 

Mr. Whitaker, you brought up a point, and I just want to make 

sure that I amplify it by asking it. Currently, is it your understanding that the ITC does not have to meet a standard of harm 

to a licensee? In other words, when a non-practicing entity brings 

a case in which they have one or more licensees, currently they do 

not have to show that there would be any harm to that licensee, 

and the licensee does not have to assert any harm if the importation continues. Is that correct? 

Mr. WHITAKER. When you say ‘‘does not have to show harm,’’ in 

effect, there is harm that is demonstrated, and that harm is demonstrated through a few means—the active importation, the active 

infringement, and then the damage to the domestic industry of that 

license. 

Mr. ISSA. Right, but the domestic industry damage—let’s just say 

that as has happened in real cases, that somebody goes and gets 

a licensee on an interpretation of the product, and a completely different product is being imported—not in the same market, not affecting it at all—that domestic market rule still is used by the ITC. 

In other words, one licensee who may have just paid a license in 

order to make the case go away, who would not assert that they 

even believe that they infringed the patent, but rather they simply 

paid it because somebody came to it and it was cheaper to settle 

than to fight it, that person is not a participant under current law 

and does not have to be in any way a plaintiff, or even assert that 

they are using what they have licensed. Is that correct? 

Mr. WHITAKER. If I follow the Chairman’s line of logic, I think 

that is correct. 

Mr. ISSA. Okay. Ms. Okun, you know, you had a very long time 

on the Commission, and probably the most senior person we could 

ask for advice. Is that not a question that has not been formally 

answered in the history of the ITC? In other words, as you as a 

trade entity have looked to meet the congressional obligation that 

there is a domestic industry, has there not been, if you will, a 

minimalization of that test, and is that not one of the challenges? 

And it is not the main thrust for today, but is it not a fact that 
70 

it only takes sort of a straw to get the requirement when it comes 

to patent licensing? 

Ms. OKUN. Mr. Chairman, I would disagree with you. 

Mr. ISSA. Okay. Can you name a case during your decade of service in which there was a license and that you ruled that the entity 

was not entitled to a domestic market even though there was a domestic license granted? 

Ms. OKUN. I mean, for the record, I would be happy to provide 

many of those cases, but I think the point, if I understand, or—— 

Mr. ISSA. For the cases where the ITC said yes, you have got a 

license and yes, somebody is importing, but we are going to turn 

down the domestic market, we are going to find that you did not 

meet it. 

Ms. OKUN. Right, there are cases where, in looking at the domestic industry requirement, which requires a substantial investment 

and exploitation in the patent where licensing—having a licensee 

is not enough. They often bring them into—or they are often part 

of a case because it is part of, if you do not manufacture, that you 

have a licensee. 

But the Commission, if anything—I mean, it is interesting to 

hear the reference to the—Chairman Goodlatte’s reference to pre2010 law because I would say that—post-2010—I would be curious 

what my colleagues say; I think there has been a heightening of 

the threshold with respect to domestic industry with—— 

Mr. ISSA. Well, I appreciate that, and I want to quickly run up 

an additional question for every member of the panel. I mentioned 

and others have mentioned the Dell, Kodak, Apple, obviously 

Qualcomm, Broadcom. How many of you believe that those cases 

were appropriate for the ITC; that in fact they were the most appropriate remedy? 

Please raise your right hand if you believe they were appropriate 

to be before the ITC as trade importers. I have one. Two. You believe that that was—okay, three. How many of you believe that it 

was not appropriate to have these substantial multibillion dollar 

companies in a trade dispute before an administrative court while 

they all were simultaneously in Article III courts? Okay. 

So I have three, two, and Mr. Bianchi is not entitled to a vote, 

apparently. Okay, there will be more questions, but I want to be 

respectful of the time, and with that I recognize the Ranking Member, Mr. Nadler. 

Mr. NADLER. Thank you, Mr. Chairman. Mr. Thorne, you testified, with respect to the leverage, that the ITC process gives someone—where they can get relief where you could not get an injunction in court because of the—presumably the balance of equities 

that would not yield an injunction. Do you think it is right you 

should be able to have a forum to get relief when on the balance 

of equity you could not get relief? 

Mr. THORNE. My personal belief, not on behalf of any client, is 

that—— 

Mr. NADLER. Well, that is granted. 

Mr. THORNE [continuing]. The Supreme Court’s law—and in fact, 

the history of the court’s application of equitable principles is the 

right way to approach that. Injunctions are powerful tools. They 

are sometimes necessary, they are sometimes just the right rem-
71 

edy. I have won them and thought I was right in winning them. 

But if money will work, that is the alternative. If your harm as a 

plaintiff is less than the harm you are inflicting, it is appropriate 

to deny the injunction. 

Mr. NADLER. That is the balance of equities test that a court of 

equity, the Article III court, will do. Now, the ITC does not use that 

balance of equity, so my question is, is it right as a matter of equity and fairness that we have a forum where those equitable principles are bypassed? 

Mr. THORNE. You see, this is a confusion I have, and I apologize 

for—I hope this answers the question. 337C, which lists what does 

the ITC do if it finds a violation, says ‘‘all equitable defenses may 

be presented’’—in all cases. The ITC has power in its current statute to recognize equitable defenses. 

The ITC, when eBay was decided by the Supreme Court, could 

have said, ‘‘You know what? We are going to improve our process, 

too. We are going to balance the equities, because equitable defenses are in our statute.’’ And they made a choice, ‘‘Nah, eBay is 

not for us. Our statute is different.’’ And the Federal circuit supported that out of Chevron deference, so they chose a different 

path. 

Mr. NADLER. So you have a forum where they can bypass the 

normal equitable balancing of—the normal balancing of equities 

and issue a contrary decision with a powerful—not injunction—a 

powerful exclusion which has the effect of an injunction? 

Mr. THORNE. That is correct. 

Mr. NADLER. Dr. Morton, would you comment on that? 

Ms. SCOTT MORTON. I am not going to comment on the law, because that is not my area of expertise, but—— 

Mr. NADLER. Do you think it is right that we have such a—— 

Ms. SCOTT MORTON. It is a great tool when you have actual trade 

disputes where you have an infringing thing that is coming in 

where you cannot go to Federal court and get money. I think when 

you have these cases—a lot of the problem here has arisen because 

we have many products now that infringe on thousands and thousands of patents. Your average device, set top box or handset or 

whatever, reacts on thousands and thousands of patents. 

So the example I gave before of the $600 device and a two-cent 

royalty, is very often the case. And what the ITC is doing is essentially imposing a $600 royalty with an exclusion order, and I do not 

think that is right. 

Mr. NADLER. So you are saying, in that kind of a case, an Article 

III court with a balance of equities test would be much less of a 

blunt instrument. 

Ms. SCOTT MORTON. Exactly. 

Mr. NADLER. Ms. Okun. 

Ms. OKUN. Mr. Nadler, I would like to counter that with respect 

to a couple things about eBay. First, it is not as if—I was on the 

Commission in, during this period—so speaking for myself, it was 

not as if the Commission looked at what happened and said, ‘‘Oh, 

we do not want to do that.’’ The Commission looked at the Section 

337 statute, which does provide for all equitable defenses, but the 

Section 337 has additional safeguards. There is a public interest 

test—one of the parts of the injunction test. It applies a public in-
72 

terest test. There is an additional safeguard. The President can disapprove any exclusion order at the end for any policy reason, and 

Congress only gave—again, it is an independent agency, just like 

you have a PTO and others—only gave the ITC one remedy, a border remedy, exclusion order to cease-and-desist and consent. 

Mr. NADLER. I understand that. I am concerned—I am hearing 

this—I am concerned about why, as a matter of policy, we should 

have a separate remedial forum that is not subject—although it 

can use—is not subject to normal equitable balances. And let me 

ask one further question first, Ms. Okun and maybe Mr. Thorne 

and Dr. Morton. In most administrative agencies, you can remove 

a case to Federal court. That would seem to be a safeguard. Here 

you cannot. Should you be able to? 

Ms. OKUN. Well, it is actually the opposite, which is you—I 

mean, because of our international trading obligations, you can 

stay the district court actions. So if there is both, you would stay— 

you can stay. 

Mr. NADLER. But why not go the other way around? 

Ms. OKUN. Well, the statute does not allow that. 

Mr. NADLER. I understand that. Why should we not—I am asking what should the statute say, not what does it. 

Ms. OKUN. Well, so I am going to answer from the trade—or the 

perspective from how you would do that, because what the statute 

tells you is if they are imports, okay? It does not matter if it is import by a U.K.-headquartered company out of China, or a Chinese 

company, or an American company, right? An import is an import, 

and that is what the Commission has to look for, for its jurisdiction 

for the case. Domestic industry, again, it relates to its activities in 

the United States, not actually where it is headquartered. 

So, again, I see it from a different perspective, which is the statute does not—the statute gives a trade remedy—which I think is 

an effective trade remedy—and again, I would think is a complement to the district court, particularly for those companies who 

are looking to stop infringing goods at the border and keep them 

out of the United States. 

Mr. NADLER. My time is expired, but I would like to hear Mr. 

Thorne’s comment and anyone else who wants to comment on that. 

Mr. ISSA. That would be okay. 

Mr. THORNE. I just want to strongly say that, in my personal 

view, if a district court remedy is available, that is where the case 

belongs. There are some situations—— 

Mr. NADLER. So it should be removable. 

Mr. THORNE. It should be exclusive. There would be no reason 

for the ITC to do something duplicative. The ITC should dismiss 

an investigation that either has been filed in a district court—in 

a parallel case in a district court or could be filed in a district 

court, because otherwise it is not just that you have got two forums 

that would be available. One forum has very different rules and 

will attract cases that can exploit those differences. 

Mr. ISSA. Mr. Marino, if I could have your indulgence just to 

make sure we make something clear that Ms. Okun said, is it your 

assertion today, as a former chair of the ITC, that the Federal 

court, an Article III judge, has no authority to tell the ITC to stay 
73 

its transactions, that under statute they are limited and do not 

have that authority? 

Ms. OKUN. Does the Federal court—does the Federal district 

court have the ability to stay that? 

Mr. ISSA. When you were chair, if you received an order to stay 

your case from an Article III judge who had the same case before 

him, you would assert that you had a statute which did not allow 

you to honor that order. 

Ms. OKUN. Right, but the statute actually says the opposite, that 

the respondent could move to stay the district court. 

Mr. ISSA. Okay. I just want to make sure that is clear for the 

record, because it is critical to—I think—— 

Mr. THORNE. Mr. Chairman, may I follow up on that for just a 

second? 

Mr. ISSA. As long as Mr. Marino does not mind. 

Mr. THORNE. The situation that Doctor Scott Morton referred to, 

where you have a standard essential patent, a patent necessary to 

practice a standard, where the patent holder has promised to seek 

only a reasonable royalty—not to go try to shut you down, but only 

seek a reasonable royalty—in that situation, it may be an example 

where you could go to a district court and say, ‘‘Wait a minute. The 

patent holder is doing something beyond what it promised to do. 

Please make them stop.’’ And you get an injunction not against the 

ITC but against the attempted assertion by the person that had 

committed to fair licensing. 

Mr. ISSA. Thank you. Mr. Marino, thank you for your indulgence. 

You are recognized. 

Mr. MARINO. Thank you, Chairman. Dr. Scott Morton, you talked 

about there should be situations where the courts, Federal courts, 

should be involved, and not the ITC. Could you give me an example 

or two of a case or cases, any why? 

Ms. SCOTT MORTON. Sure. I would rather actually speak just 

generally about the features of the cases that would lead to that. 

Mr. MARINO. That is fine. 

Ms. SCOTT MORTON. So why? Let’s take a standard essential patent example, as Mr. Thorne just described—there the license—the 

holder of the patent has already agreed that it wants money. So 

if there is a dispute over how much money, that is properly dealt 

with in the district court, and we do not want consumers to suffer 

the loss of that product from the store shelves or the implementers 

to face a loss of business, because really you are just arguing over 

whether it is 2 cents, 3 cents, or 10 cents. 

Mr. MARINO. Okay. How does timing fit into that with a situation where a court may settle it quicker or the ITC may settle it 

quicker? 

Ms. SCOTT MORTON. The court can award interest, can award 

any kind of compensation to the holder of the patent that it deems 

to be fair. 

Mr. MARINO. But is that the end of litigation, though? 

Ms. SCOTT MORTON. At the end of the litigation, you have an answer. 

Mr. MARINO. Right, the whole process. 

Ms. SCOTT MORTON. Yep, we go through the whole process. We 

get an answer. What is the damage? What is the fair royalty? What 
74 

is the appropriate payment to make? The owner of the patent 

whole, now that we know it is a valid patent, infringed, and here 

is how much it is worth. 

Mr. MARINO. Thank you. Ms. Okun, you have heard my question. 

Do you want me to repeat it? Okay. And you heard the response 

from Dr. Scott Morton. Given the ITC’s position on Federal Court 

vs. ITC—and let’s talk about streamlining too, a little bit. 

Ms. OKUN. But to be clear, I am not giving the agency perspective on this question, but just my own personal perspective. 

Mr. MARINO. I understand that. I am going for your experience. 

Ms. OKUN. But again, I see the ITC as playing a complementary 

as opposed to redundant role, and I see it as an additional tool. 

And so I guess when I hear these questions, I wonder why you 

would say to a patent owner that Congress has authorized—you 

know, is authorized in a statute to bring a case to the ITC, we 

want you to not seek fast, effective relief, but we want to send you 

over to the district court, which is often longer and be more expensive. 

And in some cases damages are not what a company is looking 

for, particularly in a high-tech industry where what is important 

is getting your product to market quickly. If you look at an exclusion order, for example, for OtterBox, which was just trying to 

stop—because the smartphones change so much, OtterBox needed 

to get its products in quickly. Without an exclusion order—it was 

not looking for damages. It wanted to get its products out in front, 

and not the infringing products. So I guess that would be an example that I would give where I just do not see damages as always 

being the best remedy. 

Mr. MARINO. Okay, thank you. Attorney Bianchi, am I correct 

when—understanding that you said the omission has two sources 

of remedy exclusion and cease-and-desist? 

Mr. BIANCHI. That is correct. 

Mr. MARINO. No injunction. 

Mr. BIANCHI. That is correct. 

Mr. MARINO. Tell me the difference, because I heard one of the 

panelists referred to exclusion as akin to an injunction. Could you 

explain that to me, please? 

Mr. BIANCHI. So in a district court where an injunction is available, in essence the court would be saying to one of the parties, you 

cannot do something. 

Mr. MARINO. At any given time, early on in a case—and we are 

not talking about the end of the case, correct? An injunction—a 

court can order an injunction early on if the evidence is there. 

Mr. BIANCHI. It depends. 

Mr. MARINO. If they meet the criteria. 

Mr. BIANCHI. If the judge were to feel that the evidence were 

there and requirements were met for injunctive release, then yes. 

Mr. MARINO. Okay, I am going to cut to the chase here. You have 

stated that unlike the Federal courts, the Commission does not institute an investigation before the sufficiency of the complaint is 

assessed. What can you do—and how long does that take? Let’s 

start with how long did—was—an average investigation take, because that—I am looking at individuals, small businesses, small 
75 

entrepreneurs with patents who they want their patent—they want 

to get it out. They want to continue to make money. 

Without any injunctive power, based on the fact that you do an 

investigation, there is a long time—there could be a long period of 

time by which that individual is waiting for a decision from the 

Commission. Is that correct? 

Mr. BIANCHI. Sorry, sir. Mr. Chairman, do I have—— 

Mr. ISSA. He was very indulgent with the prior question. 

Mr. BIANCHI. I just wanted to make sure. So I think it is actually 

the reverse of what you are saying. The Commission is typically 

much faster than a district court. So let me give you an example. 

Mr. MARINO. Okay. 

Mr. BIANCHI. At the Commission, once a case is instituted by the 

Commission, you will get to a hearing before an ALJ within about 

nine and a half months. In a district court, it could easily be two 

and a half years. 

Mr. MARINO. But you could have an injunction long before two 

and a half years in a Federal court. 

Mr. BIANCHI. If the Federal court felt that the measures were 

met, but most likely what I was trying to articulate, sir, under 

where we differ from Federal courts—— 

Mr. MARINO. I understand. 

Mr. BIANCHI [continuing]. Is that we have very specific pleading 

requirements that—and requirements before we institute. The 

Commission has 30 days to decide whether or not those requirements are met, whereas in a district court proceeding, you have a 

notice pleading in general. 

Mr. MARINO. A notice to appear before Federal court. 

Mr. BIANCHI [continuing]. And it could be a year later before you 

get to the point where we are at after 1 month at the Commission. 

Mr. MARINO. Thank you. And, Chairman, thank you for the extended time. 

Mr. ISSA. Thank you. And with that, the gentlelady from California, Ms. Chu. 

Ms. CHU. Mr. Thorne, you and other witnesses argue that the 

Supreme Court’s decision in eBay vs. MercExchange, which made 

receiving an injunction more difficult in Federal court, had the effect of entities moving forward to the International Trade Commission. At the ITC, these entities could pursue an exclusion order 

with less vigorous tests. You also state that the ITC is an attractive forum for non-practicing entities because the ITC and district 

courts apply divergent joinder rules. Could you describe what effect 

this has on cases moving forward at the ITC? 

Mr. THORNE. Thank you for those questions. First of all, on the 

effect of the Supreme Court’s eBay decision, it is been my experience that that caused a shift, but it was also the ITC’s own experience. So in their 2012 budget request, they wrote to Congress. 

Since the United States Supreme Court 2006 eBay decision, which 

has made it more difficult for patent holders that do not themselves practice a patent to obtain injunctions in district court, exclusion orders have increasingly been sought by non-practicing entities that hold U.S. patents. That is the ITC writing to Congress 

in its 2012 request. 
76 

Now, the numbers of NPE cases reached a peak in, I think, 2011 

or 2012. I reported numbers in my testimony based on—there is a 

company that is good at analyzing these cases called RPX. But 

what we counted was not the number of investigations launched, 

but the number of companies sued. And under the 2011 American 

Invents Act, in Federal district court, you now have—you cannot 

sue 30 companies or 40 companies or 50 companies that you say 

all infringe the patent. You can only sue people that are involved 

in the same transaction or occurrence. 

And so what the ITC can do with one case against 30 companies, 

this is the same thing that would be 30 cases in Federal district 

court. Counting it that way, the NPE docket of the ITC is still at 

about one quarter. 

Ms. CHU. Well, Mr. Stoll, you also state the eBay case may have 

made the ITC an attractive venue. I understand that in the last 

few years the ITC has taken steps to free—to try to weed out these 

frivolous claims. And can you describe how the ITC altered the licensing prong within the domestic industry test to address frivolous claims? And what effect did it have in the Federal circuit? And 

also, Ms. Okun, if you could respond to what was said. 

Mr. STOLL. Yes, I can. I think the ITC has done a better job of 

requiring the evidence linking the licensing effort to the particular—the patent involved to the particular product that the license relates to so that, you know, we are not comparing apples to 

oranges. So the products that are subject to the license should be 

pretty closely related to the product that this patent owner is seeking to have excluded. 

So it is the relationship there that they have tightened up the 

standard—the burden of proof has gone up. I think what is going 

on here is although there was only one case subject to the pilot program and there was another case before that, but what is going on 

is practitioners are getting together with their clients and discussing, given this higher burden of proof, should we even try to 

file in the ITC or not? And I do believe that even the pilot program, 

as well as the Federal circuit cases that are supporting the Commission’s efforts to tighten up the standard, have discouraged people from bringing, you know, at least frivolous claims to the ITC, 

which I think is the goal here. 

Ms. CHU. Ms. Okun? 

Ms. OKUN. Oh, I would agree with those comments. I mean, I 

think if you, again, look at the numbers—and just to back up 1 

minute about the budget justification, of course, when an agency is 

trying to evaluate it—having been there when we were doing budget justifications, when you are trying to say what our case load is, 

it is better to overestimate than to underestimate in terms of your 

funding, so I think that explains some of that. 

Because if you actually look at the numbers post-2011, they have 

gone down. And I think the point is, there have been changes both 

in the case law and with the Commission taking its own steps to— 

with the 100-day program and—which is in rulemaking right now 

for additional changes. So you see a decline. 

There were three cases, two cases, and we are talking about a 

very small number of cases at the ITC, and I think that, again, 

these—the case law and the administrative actions have sent a 
77 

strong message to lawyers and clients. Do not come to the ITC unless you can walk in the door with a complaint that is sufficient. 

Ms. CHU. Mr. Thorne, what are your thoughts on these changes 

and the fact that the number of cases are going down? 

Mr. THORNE. The number of cases, as I said, is probably not the 

way you want to measure it. The way you want to measure is the 

number of companies that are sued. Each company will be allowed 

and will need to present its own claim constructions, its own noninfringement defense, its own invalidity defense. 

There is some coordination between companies, but there is also 

often a difficulty to get everybody on the same page because they 

have got different products that are differently accused. It is a kind 

of bedlam where in 2011, as part of the America Invents Act, Congress said for district courts we are not going that anymore. 

In district court, it is not enough to say you all infringe the same 

patent. You are entitled to your own day in court and a separate 

case. So taking the cue from Congress, I would count the numbers 

based on how many respondents are sued. And by those numbers, 

one quarter of the cases at the ITC over the last 3 years have been 

NPE cases. 

Ms. CHU. Ms. Okun wants to respond. Could she? 

Mr. ISSA. Briefly. 

Ms. OKUN. Just a note on the number of respondents two things. 

One, post the Broadcom v. Qualcomm litigation, after the Federal 

circuit decision, parties have to name the downstream producers, 

and so there was increase in the number of respondents because 

you had to name everyone in order to get the jurisdiction. 

Two, it is true that at the ITC, one of its advantages for someone 

facing foreign imports coming in from a whack-a-mole Chinese 

company, here, there, and everywhere, can name everybody and get 

an exclusion order against them without having to go to district 

court several times. And there are many cases in my written testimony where I point that out. 

Ms. CHU. Thank you. Thank you, I yield back. 

Mr. ISSA. Thank you. Ms. DelBene. 

Ms. DELBENE. Thank you, Mr. Chair. Thanks to all of you for 

spending time with us today. As you know, the DOJ opposes mergers or acquisitions when it finds that a transaction would unduly 

concentrate market share, eliminate competition to the detriment 

of consumers. So, for example, GE withdrew an attempted sale of 

its appliance business to Electrolux after the DOJ filed suit to 

block the sale based on similar types of concerns. 

So I wanted to start with Dr. Morton. Do you think some of the 

same market conditions appear in ITC investigations and—where 

a complainant seeks to ban a large percentage of products and 

players in question? 

Ms. SCOTT MORTON. It is not the same concern that you have 

with a merger, because it is not the case that the two firms are getting together. But there is consumer harm. Where does the consumer harm come from? Well, as I said, let’s say we have a $600 

device and the owner of the patent asks for 50 cents in royalty and 

should be paying only—should be getting only two cents. That 

extra 48 cents is passed on to the consumer. 
78 

Some fraction of that is passed on to the consumer. Let’s assume 

there are 20, 50 firms all engaging patent holders, all engaging in 

this behavior. The price of that product will be higher. The consumer will be harmed. There is going to be less incentive to make 

that product better and include more features, if that is going to 

attract more people suing you at the ITC. So it does create consumer harm. It is the problem I wrote about in my testimony, holdup, and it is of concern. The tech industry is a very important 

American industry, and it is being harmed by these patent assertion entities that are extracting profits from implementers way in 

excess of the value of their technology. 

Ms. DELBENE. And Mr. Bianchi or Ms. Okun, do you feel—yeah, 

how does the ITC take into consideration the effect on competitive 

conditions when you are looking at your public interest analysis? 

You can look at each other and decide who wants to go first. 

Mr. BIANCHI. Well, I have to answer from the perspective of the 

Commission, which sits in this instance as a court. So I cannot address specifics other than to let you know that we are statutorily 

required to consider four public interest factors, including competitive conditions in the United States, and also the effect on consumers. The Commission does that when it considers a remedy. 

And as was noted earlier, there is an additional backstop there 

that the president can disapprove any recommended remedy within 

60 days based off of any policy consideration. 

Ms. DELBENE. Ms. Okun, go ahead. 

Ms. OKUN. Briefly, my perspective on that, which is, as Mr. 

Bianchi states, it is correct. The Commission does look at that before imposing any remedy. And I guess my question is, it is almost 

like proving a negative. In other words, if all these technology companies that have somehow come to the ITC, if their actions have 

proved to stifle innovation, I do not see the evidence of that. 

I mean, if you look at what is going on in mobile communications, all these things, I mean, there is leaps and bounds. And I 

think I come from the perspective that what you do not want to 

do is de-incentivize those companies that are making these strides 

from having the ability to seek an exclusion order when necessary 

and—but the Commission should look at it carefully and see if 

there are other products in the market and make sure that those 

competitive conditions are maintained. 

Mr. THORNE. Could I jump in with a supplemental answer? 

Ms. DELBENE. Certainly. 

Mr. THORNE. When Ms. Okun was the chair of the agency, there 

was the dispute that the Chairman mentioned between Broadcom 

and Qualcomm. The one patent on which everything hinged was an 

idea for how to save battery life on a phone. All the phones that 

were imported into the U.S. using 3G technology, all the phones, 

were threatened by a battery-saving idea. There are millions and 

millions of—these are marvels of engineering—there are millions of 

functions embedded in these. There are some fraction of a million 

patents that read on those functions. This is a battery-saving idea 

that was worth pennies. 

And the administrative law judge, using what I would have 

thought was a district court-like common sense, said, ‘‘I see the violation. The battery patent is infringed. But we are not going to 
79 

have an exclusion order. The Commission reversed that and said, 

‘‘No, we are going to have an exclusion order against not just the 

chips that were defended by Qualcomm, the party in the case, but 

all these other people that were not there. Their phones were going 

to be excluded. 

Ms. DELBENE. Dr. Scott Morton, you looked like you were going 

to—— 

Ms. SCOTT MORTON. Yeah, thank you. The issue of stopping the 

ITC from excluding a product does not create disincentives for innovation. A party that has a great patent can go to Federal court 

and explain why their patent is great and get a fair return on that 

innovation. What the ITC allows that party to do is get, as John 

just said, the whole value of the phone, which is not the value of 

the battery-saving patent. You want them to be able to go to a 

judge and explicitly explain what the value of the battery-saving 

patent is and get paid for that. And that then stimulates innovation that we want in all sorts of features like batteries. 

Ms. DELBENE. Thank you. My time has expired. I yield back, Mr. 

Chair. 

Mr. ISSA. Thank you. We now to go the other—oh, no, Mr. 

Jeffries of New York. 

Mr. JEFFRIES. Thank you, Mr. Chair. And I want to thank the 

witnesses for your presence here today and the informative testimony today. I will start with Ms. Okun. The ITC proceedings are 

limited in terms of the ultimate remedy to equitable relief. Is that 

correct? 

Ms. OKUN. Limited—excuse me—limited to an exclusion order or 

a cease-and-desist order. 

Mr. JEFFRIES. Okay. Now once that determination is made as to 

what the appropriate remedy would be, either cease-and-desist or 

an exclusion order, there is then a process, as I understand it, for 

the—I guess it is called the Office of Unfair Import Investigations. 

Is that correct? 

Ms. OKUN. There is an Office of Unfair Import Investigations, 

correct. 

Mr. JEFFRIES. And what exactly is the role that they play in an 

ITC proceeding? 

Ms. OKUN. Maybe we can do two questions. I think your first 

part was what does the Commission evaluate before it would impose one of these remedies, and that there is a public interest test 

that the Commission goes through. And I would note it is one of 

the changes that the Commission has made in the last few years 

to allow the administrative law judge in a case where they think 

that there might be public interest issues, including with respect 

to components to take evidence. 

And so the administrative law judge can develop a record that 

would then be before the Commission when it looks on impact on 

consumers, public health and welfare, competitive conditions, and 

like indirectly-competitive products. So that evaluation is a very 

important part of what the Commission does. With respect to the 

Office of Unfair Import Investigations, I am actually going to turn 

that over to Mr. Bianchi. I could explain it, but because it is a 

Commission agency I think it would but helpful to have him elaborate on that. 
80 

Mr. BIANCHI. So if I understand your question correctly, sir, the 

Office of OUII, as we refer to it, serves several different functions. 

But it is a separate—during an investigation, it serves as a separate, independent body. So it is a party, sorry, not body. So it 

serves the role of not one of the parties of interest, and they are 

looking to areas that can help develop the record more. 

They also operate in the proceedings as a way to try to encourage 

settlements or negotiations amongst the parties. They help the administrative law judge develop certain kinds of record evidence. So 

in that situation, they are acting as a party but not a party of interest, if you will, in the proceeding. When it gets to the Commission stage, they also work as a party. 

They may decide that the ALJs—the administrative law 

judge’s—initial final determination is that there is something that 

should be reviewed by the Commission so they can petition the 

Commission to review it. Or they may be—or some other party may 

and they may comment on it. They also play the role of—in the 

remedy proceedings—of making recommendations as a party to the 

proceeding to the Commission on what the remedy may be. Does 

that answer your questions? 

Mr. JEFFRIES. Yes, and I appreciate the thorough answer. And 

the role essentially is to function as an ombudsman in the public 

interest or an advocate in the public interest during the proceedings? Is that right? 

Mr. BIANCHI. I would say that is one of the roles that it plays. 

Mr. JEFFRIES. Just sort of walking through the procedural determinations, if a conclusion is made that there was infringement but 

it is subsequently determined, notwithstanding the infringement, 

that it is in the public interest not to permit exclusion, at what 

point in the process is that public interest determination made? It 

is my understanding that comes at the end, not the beginning. Is 

that right? 

Mr. BIANCHI. That is correct, although the Commission, in order 

to save time and resources of the parties, oftentimes will ask the 

administrative law judge at the beginning of the process to collect 

evidence on that so that the Commission will have that when it 

needs to make its decision on remedy. 

Mr. JEFFRIES. The issue, in conclusion, that I want to raise is it 

seems to me that if, in fact, there are a set of circumstances which 

suggest that even if infringement may ultimately be found during 

the course of the determinations by the ALJ or by the ITC, that 

there is a strong enough public interest in not allowing for exclusion or even cease and desist, should that not actually happen at 

the beginning of the process as opposed to an entire litigation taking place? A finding of infringement, but ultimately no order issued 

to exclude or cease and desist because of the strength of the public 

interest? 

Mr. BIANCHI. So if I may, I view that as a policy question, which 

I should not be opining upon. I believe Ms. Okun would be able to 

opine up on that. 

Mr. JEFFRIES. My time is expired. 

Mr. ISSA. I would allow the gentlelady. She actually is chomping 

at the bit. I need to make sure she gets the opportunity. Please. 
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Ms. OKUN. Just quick. With respect to if you turn—if you use 

public interest to deny relief in the very beginning I think the problem with that is the case that walks in the door with the number 

of patents asserted, the number of respondents, often is very unlike 

the case at the end that the Commission is actually considering. It 

is much narrowed, as happens in District Court in other litigation. 

People settle out. 

The other thing, and I had this in my written testimony and I 

will refer it to you, which is because of the moving-up when public 

interest can be considered in particular cases of administrative law 

judges, you see settlements where an administrative law judge has 

recommended there be no relief and parties settle out and realize 

they are not going to make it. 

Mr. JEFFRIES. Thank you. I yield back. 

Mr. ISSA. Thank you. We now recognize—oh, I now ask unanimous consent that a letter dated April 14, 2016, to Mr. Blake 

Farenthold from a long list of supporters of H.R. 4829 be placed in 

the record. Without objection, so ordered. 

[The information referred to follows:] 
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Mr. ISSA. We now recognize the gentlelady from California, Ms. 

Lofgren. 

Ms. LOFGREN. Thank you, Mr. Chairman, and thanks for this 

hearing and to each one of the witnesses for their useful testimony 

in making the issues before us very clear. I will be honest. The current jurisdiction of the ITC does seem at odds with manufacturing 

practices. I mean, if you have an American company that does 

some of its manufacturing overseas, it is still an American company, and that is frequently the case. So I am just not seeing what 

the value added is to have dual jurisdiction. And I think the idea 

that if you filed or you could have filed as an exclusion of jurisdiction makes a lot of sense to me. 

I also think in terms of, you know, I do not think eBay got 

enough credit for what it did. I mean, eBay is a company in my 

district and they spent a lot of money and a lot of time pursuing 

a case they could have settled and successfully, and it did a world 

of good for the whole technology sector because prior to eBay, it 

was extortion time. And that potential for extortion exists, I think, 

in the ITC. That does not mean the Commissioners even see it because it is happening before it gets to you. So that is an additional 

reason not to undercut what the Supreme Court did. And I think 

we have got that situation now. 

But I want to talk about another issue, and it relates to copyright. It is been reported last year that some copyright holders 

were considering using the FTC to force IS Internet service providers to block allegedly-infringing websites. Now this was a proposal that would trample the safe harbor protections in the DMCA. 

But it also was a remedy that Congress rejected in the Stop Online 

Piracy Act. 

And I am sure all of us who were in Congress at that time remember the complete meltdown in the Congress. The phones were 

off the hook. We got seven million emails in an hour, and the country was up in arms about it. So, I understand that the Federal Circuit Court overturned the ITC decision. They have just rejected en 

banc a rehearing. 

But I am wondering if we ought to make it very clear to the ITC 

that they do not have jurisdiction over digital transmissions to 

avoid—I mean, the fact that they would do something like that is 

shocking to me. And, you know, for the survivors of the SOPA 

markup here, and I am sure the Chairman recalls it very well, we 

do not want to get in that environment again. Dr. Morton, I mean 

you are nodding your head, what—do you have a comment—anybody who wants to comment on that I would welcome the—— 

Ms. SCOTT MORTON. Yeah, I generally agree with you. I do not 

see the reason for the ITC to go in this direction. I wanted to make 

one other comment that is a little bit related to your first point, 

which is I think there is been some attention in this hearing to 

NPEs. And that is a narrow definition. That is a definition that is 

a party that does not make anything. Suppose you change the process at the ITC to make it hard for NPEs. What would they do? 

They would sell their patents to somebody who makes something. 

Ms. LOFGREN. Sure. NPE is a verb, not a noun. 

Ms. SCOTT MORTON. Yeah, right. 

Ms. LOFGREN. Right? 
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Ms. SCOTT MORTON. And so what we are really worried about is 

patent assertion. 

Ms. LOFGREN. Right. 

Ms. SCOTT MORTON. Patent assertion for more than the patent 

is worth, whoever owns it. 

Ms. LOFGREN. I agree. 

Ms. SCOTT MORTON. And if you went and used that definition 

with the ITC docket, you would get a very large number. 

Ms. LOFGREN. But I think it is simple just to say what value does 

the duplication provide? I mean, we have a general bias against 

forum shopping and that is really what this is. 

Mr. THORNE. Can I jump in on the copyright question? 

Ms. LOFGREN. Sure. 

Mr. THORNE. Let me disclose first that I represented the Internet 

Association in the case you refer to—— 

Ms. LOFGREN. I did not know that. 

Mr. THORNE [continuing]. In the Federal Circuit. And the Internet Association was extremely concerned that the way the Internet 

works it slashes back and forth across the borders. At any given 

time of day you may be served out of Europe or Asia, and there 

is no way to easily distinguish a particular transmission that might 

be accused as infringing. The benefit of the ITC—I want to give to 

credit occasionally of having customs police at the borders is irrelevant to the Internet. 

Ms. LOFGREN. Correct. 

Mr. THORNE. The ITC admitted that their exclusion order remedy could not apply in that case and therefore they fell back to 

what was supposed to be a softer secondary remedy, the cease and 

desist order. The Federal circuit got that decision right. I understand the ITC is at a decision point as of today whether they 

should ask the Supreme Court to review the case. And that would 

be the first Supreme Court review of an ITC case in a context 

where the ITC really does not have a role. 

Ms. LOFGREN. Well, I just think the whole adventure into this 

area is very troubling to me. And, Mr. Chairman, I think we ought 

to talk about whether we should make it clear that we do not want 

the Commission to do what Congress decided not to do and at least 

as a possibility. And I see my time is expired so I yield. 

Mr. ISSA. Would the gentlelady yield for a—— 

Ms. LOFGREN. I would yield, of course. 

Mr. ISSA. I share with you that feeling that if we are going to 

have multiple places in which people can seek jurisdiction, and particularly in an Internet age, we have to figure out both the cost to 

the Federal Government of entities being in multiple areas, the 

cost to defendants who may find themselves unreasonably in two 

places. 

But I think the last one was the point that you were bringing, 

too, which was the original intent of the ITC was to act against foreign entities. And, you know, you and I saw in SOPA that often 

it was a domestic entity that was a target and a foreign entity that 

was somewhat involved. We do need to recognize that Article III 

is the right place for domestic entities, and the ITC may have a 

role in exclusively foreign entities, and I look forward to working 

with the gentlelady. And I think you have hit exactly on the role 
86 

of, how do we divide the difference between trade, which is foreign 

entities, and the Article III courts we oversee for domestic. 

Ms. LOFGREN. Thank you, Mr. Chairman, I yield back. 

Mr. ISSA. Thank you very much. We now recognize with great 

pleasure the Ranking Member of the full Committee, Mr. Conyers. 

Mr. CONYERS. Thank you, Mr. Chairman. And I apologize for 

having to remove myself. I hope this is something that has not 

been answered already, but I would like to know from anyone that 

would care to assist in this question, is there data indicating 

whether the number of patent assertion entities that have filed 

cases at the ITC is going up or down since our hearing in this Committee about 3 years ago? 

Mr. THORNE. I can quickly answer that. 

Mr. CONYERS. Please. 

Mr. THORNE. In my written testimony, the number of companies 

sued by NPEs hit a high point in 2012, of 54 percent of the companies sued that year. In the last 3 years, 2013, 2014, 2015, the number of NPE-sued companies is now down to a quarter of the docket. 

So 75 percent are not sued by NPEs, but a quarter still are. 

Ms. SCOTT MORTON. But an NPE is not the same as a PAE, 

okay? And a non-practicing entity does not sell anything that is a 

widget. It just sells intellectual property. A patent assertion entity 

might be asserting patents and also have other businesses. But I 

think that the—this is a narrow definition that Mr. Thorne is putting forward. The problem is probably bigger than that. 

Ms. OKUN. Could I just add something on the data? 

Mr. CONYERS. Yes, please do. 

Ms. OKUN. Which is the International Trade Commission helpfully lists on its website and puts up Section 337 data, including 

the number of Section 337 investigations brought by NPE and they 

have a definition of an NPE one and two, two being closer to a patent assertion entity. So those numbers indicate that in 2015 there 

were two patent assertion entities, 2014, three, 2013, six. So again, 

the number has gone down and it is publicly-available to look at. 

Mr. CONYERS. Let me just ask this question for Tom Stoll. In 

light of ITC changes made in recent years to I hope better define 

the domestic industry as it relates to NPEs and to implement the 

100-day pilot program, do you believe additional reforms are necessary to combat abusive patent litigation? 

Mr. STOLL. Well, I think it is clear to everyone that whatever 

problem there was in 2011, 2012, when the number of filings 

reached their peak, when the number of NPE—if we—you know, 

using the U.S.—using the ITC’s term NPE—the number of those 

filings have both gone down significantly. And I think it warrants 

a further look but maybe not legislative action at this point. At 

least, you know, let us sit back and let us monitor and let us see, 

you know, if this is going to be a long-term fix or not. 

The ITC has clearly proven capable of addressing these issues 

through the domestic industry requirement, through the pilot program, and I think what we are seeing as a result of that is that 

people are not bringing frivolous claims. And I really think when 

we talk about abuse of the patent system, we are talking about 

people bringing frivolous claims, not legitimate claims. 

Mr. CONYERS. Any other comments on that? 
87 

Mr. STOLL. I want to make one other point, you know, with this 

patent hold-up if I could. You know, the ITC has an EPROMs analysis, so that if a patented invention is just a tiny component of a 

larger product, it is one of the many factors that they will consider 

in determining, you know, which articles will be excluded. 

So in that case, the case involved chips, but when the ITC took 

a look at it they saw, you know, not only chips but circuit boards 

in automobiles. And they said, ‘‘Well, we will exclude chips, we will 

exclude, you know, some of these computers, but we are not going 

to go so far as to allow this to extend to automobiles.’’ And I think 

that is a reasonable application of their authority. 

Ms. SCOTT MORTON. I just wanted to point out that a patent assertion entity seeking money for its intellectual property need not 

be a frivolous lawsuit. So I do not think that these parties who 

would like to be monetized for legitimate intellectual property are 

doing anything wrong by seeking monetization. I think they should 

seek it in Federal court so that they get the correct number. So it 

does not mean that the patent is frivolous or that the—or seeking 

of royalties is frivolous. Just want to make that—— 

Mr. ISSA. Mr. Whitaker, I know you have been trying to get in. 

Mr. WHITAKER. Just one quick comment. One thing that has not 

been addressed here at all today is that not all exclusion orders, 

not all remedies at the ITC are the same. There are limited exclusion orders and general exclusion orders, limited being focused just 

on the respondents that are named, and general exclusion orders, 

directed to entities that you never can find, and goods that are 

being brought into the United States that we do not know their 

source. 

And so I think it is important that we state that context that the 

ITC has a very important role. And I know for clients that I have 

represented, that is a very important thing. And I think some of 

the statistics will bear out that as many as 40 percent of the exclusion orders that are issued by the ITC actually rise to the level as 

being general exclusion orders. 

Mr. CONYERS. Thank you, and thank you, Chairman Issa. I will 

be going over some of these comments from these very worthy six 

witnesses that we had today. 

Mr. ISSA. Thank you, Mr. Conyers. I now ask unanimous consent 

that a letter from the Consumer Technology Association dated 

April 13, also to Mr. Farenthold, be placed in the record in support 

of H.R. 4829. Without objection so ordered. 

[The information referred to follows:] 
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Mr. ISSA. I am going to be very, very brief just to summarize 

what we have done, and Mr. Nadler if he wants to, too. Mr. 

Thorne, you brought up a point that I want to make sure I understand because you talked in terms of, if you will, the opportunistic 

nature of how you would work on either side of a case. Under current law—and we, of course, have limited jurisdiction, but we have 

absolute jurisdiction over the Federal courts—under current law, 

Ms. Okun clarified that the 1988 Act specifically prohibited, as a 

matter of fact, directed, if you will, the—an Article III court to stay, 

and it effectively prohibited them from ordering the ITC to stay 

their case. 

Taking that at face value, do you think an Article III judge 

should have or does have the authority, given a—let’s just use the 

example you had, which is an already royalty-based organization 

that has agreed to give one and all royalties—if they go to the ITC, 

do you believe that creates a breach of that agreement, and do you 

believe that an Article III judge today would have the ability to dismiss the case in that they are seeking a remedy—not stay the case, 

dismiss the case—because they are seeking a remedy which would 

nullify their claim for dollars? 

Mr. THORNE. I believe that if a patent holder in a standards 

form—these are where competitors come together to collaborate— 

one of the rare exceptions—— 

Mr. ISSA. Right, and I am using that example because I think it 

is unique. 

Mr. THORNE. In that situation you make promise—I will enforce 

my patent only by asking for reasonable royalties. If you breach 

that promise by seeking an exclusion order from the ITC, I believe 

a district court has power to enjoin that breach and continued actions in support of that breach so that you could enjoin someone 

who had gone to the ITC. 

Now I read the statute differently than Ms. Okun. I believe that 

the ability to stay a district court decision is in the—that that option is held by the person sued, not the patent holder. 

Ms. OKUN. That is correct. I clarify that. It is the respondent 

under the statute who can ask for a stay and that was in response 

to, you know, amendments with the Uruguay Round to make our 

lock-in system. 

Mr. THORNE. Right. 

Mr. ISSA. Okay, but I just want to make sure we got that one 

point in, because likely, anything that Mr. Nadler and Mr. Conyers 

and the rest of us would work on would be primarily directed toward the Article III judges and what we would guide them to do. 

Does anyone here want to bet whether or not the Supreme Court 

is going to get that case since today apparently is the date? 

Mr. THORNE. Well, my prediction is that if the ITC asks the Supreme Court to take the question, should the ITC start working on 

the Internet, I believe the Supreme Court will decline that invitation. 

Mr. ISSA. Okay, so we not only have a prediction—we do not 

have a prediction of will they, but we have the results. Ms. Okun. 

Ms. OKUN. Well as you said, there is just a question of Chevron 

deference in the case, as well, that may be more interesting to the 

Supreme Court. 
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Mr. ISSA. As a matter of fact, Justice Roberts constantly says 

that we had one hearing on Chevron, they have them every day. 

So I would not be surprised that, A, you could both be right in this 

matter. We have covered a lot of points. 

There were a number of Members who could not make it here, 

so I would ask all of you, would you be willing for the next 5 days 

to take follow-up questions for the record? 

I have a yes from everybody, and I very much appreciate it. 

Do any of you need to make a—I am sorry, Mr. Nadler do you 

have any—— 

Mr. NADLER. Well I just—thank you, Mr. Chairman. I just have 

a general observation. It seems to me very questionable why you 

would have—and maybe we ought to do something about it—why 

you would have a situation where one body can issue decrees, call 

them what you will, that flout the normal equitable considerations 

that an Article III court would impose. 

And also, the question is why you have these dual jurisdictions, 

we can at least remove a case. These are questions that I am going 

to look into further. So you should develop one body of case law, 

and enable the normal equitable considerations to apply because I 

do not see any reason, unless someone can show me a reason, why 

you have one area where equity does not—where the equitable 

principles do not apply, because we all agree on equitable principles, at least I always thought we did. Thank you. 

Mr. ISSA. With that I want to thank all of you for participation 

and we stand adjourned. 

[Whereupon, at 11:55 a.m., the Subcommittee adjourned subject 

to the call of the Chair.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD
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International Trade Commission 337 Statistics Report 
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Response to Questions for the Record from Deanna Tanner Okun, former 

Chairman, International Trade Commission, and Partner, Adduci, Mastriani & Schaumberg, LLP 
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Response to Questions for the Record from John Thorne, Partner, Kellogg, 

Huber, Hansen, Todd, Evans & Figel, PLLC 
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Response to Questions for the Record from Mark L. Whitaker, Partner, 

Morrison & Foerster LLP 
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Response to Questions for the Record from Fiona M. Scott Morton, 

Theodore Nierenberg Professor of Economics, Yale School of Management 
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Response to Questions for the Record from Thomas L. Stoll, 

Principal, Stoll IP Consulting 
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Response to Questions for the Record from Dominic Bianchi, 

General Counsel, United States International Trade Commission 
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