The International Trade Commission (ITC) will hold its second oral hearing in almost 10 years on April 20, in Certain Carbon and Alloy Steel. The hearing was originally granted in February and scheduled for March 14. But the ITC rescheduled the hearing on March 3 to be held next month instead.
This follows the Commission in November holding a live hearing before the full ITC in a Section 337 case for the first time since 2007. The hearing was part of the review of an ID finding Umicore had infringed BASF and Argonne National Laboratory’s patents. The dispute, Certain Lithium Metal Oxide Cathode Materials, involved next-generation Lithium-Ion battery technology.
In next month’s hearing in Certain Carbon and Alloy Steel, the Commission has said submissions should be limited to addressing four questions. These are explaining the policies that underlie the injury requirement under Section 337(a)(1)(A)(iii), explaining what the complainant must prove to satisfy the injury requirement, explaining how “antitrust injury” standing compares to the injury requirement, and explaining whether “antitrust injury” standing is, or should be, required for establishing a Section 337 violation based on a claim alleging a conspiracy to fix prices and control output and export volumes as a matter of law and/or policy.
Written submission should be filed by March 27.
The investigation is interesting because it involves antitrust claims, the first such investigation at the ITC for more than 25 years. US Steel filed a complaint against Chinese steel companies alleging they were conspiring to fix prices, control output and export volumes in violation of Section 1 of the Sherman Act, misappropriating trade secrets and falsely designating the origin or manufacturer of steel products being imported or sold for importation into the US.
Judge Lord granted summary determination terminating the antitrust claims from the investigation in November but the Commission in December indicated it would review the determination and could hold an oral hearing.
Jones Day on its ITC Blog commented: “After almost a decade without hearing a Section 337 oral argument, the ITC has now granted two in only a few months. It appears that the current Commission is somewhat receptive of oral argument requests – at least when there are nuanced legal issues involved. Parties seeking review of an ALJ determination concerning complex factual or legal issues should therefore consider seeking an oral argument before the Commission.”
Jones Day noted there is little Commission precedent for antitrust violations. “The oral argument will provide the Commission an opportunity to flesh out the issues and hear each other’s thoughts while complying with the Sunshine laws. Jones Day will continue to monitor this interesting case,” it said.
Kirkland & Ellis’s LoCascio represented BASF and Argonne at the hearing in November. He told Managing IP in January that the ITC may consider further ITC hearings.
“The Commission is a sought-after venue in many respects because of the predictability and speed it offers,” he said. “In so far as the Commission is going to explore this and have more hearings I think it is going to have to take pains to preserve the predictability and scheduling aspects of its cases and investigations. If you are a complainant weighing your options and you are ultimately going to get relief in two years instead of a year and a bit, that might change your calculus a bit.”
