That was the message on Tuesday during a hearing on abusive patent litigation and the ITC before the House Judiciary Committee's intellectual property sub-committee.
Among the concerns raised were that since the ITC does not award damages and its decisions do not bind courts, litigants have incentives to file before both the ITC and district courts, resulting in wasteful duplication.
The ITC takes about half as much time to decide cases, is four times more likely to adjudicate, and is more willing to award injunctions to "prevailing patentees", testified Colleen Chien, an assistant law professor at the Santa Clara University School of Law in California. She and other witnesses said that the ITC, founded to stave off foreign piracy, now plays too large a role in patent disputes.
House Judiciary Chairman Bob Goodlatte (right) warned in a written statement that in recent years, patent assertion entities (PAEs) or so-called trolls "have used the commission as a forum to assert weak or poorly issued patents against American businesses". The congressman added: "It is evident that there are cases before the ITC that probably should be litigated exclusively in our US district courts."
Howard Coble, the subcommittee's chairman, echoed those worries in opening remarks. "The ITC serves a narrow role. It is not meant to be an alternative to district court and it is not equipped to deal with the complexities of today's various technologies," he said.
Arguments over the SHIELD Act
Following the hearing, Coble told reporters that Congress is in the early stages of exploring legislative changes. In February, Congressman Peter DeFazio introduced an updated version of his bipartisan bill, the Saving High-tech Innovators from Egregious Legal Disputes (SHIELD) Act, which would force patent trolls to pay all legal expenses resulting from suits they lose. Additional ideas raised at the hearing included: harmonising actions by the courts and ITC; streamlining litigation and lowering legal costs; and ensuring the ITC gives greater consideration to the public impact of its exclusion orders (which prohibit infringing products from entering the US) on competition and the marketplace.
During his testimony, Russell Binns Jr, associate general counsel at Avaya, a California-based provider of business communications systems, suggested that some PAEs seek exclusion orders for one purpose: to use "as a hammer to drive up settlements that they couldn't get otherwise in federal court".
Despite the rhetoric about the ITC, some lawmakers and witnesses cautioned that Congress should tread carefully, to avoid remedies that might deter legitimate lawsuits and result in unintended consequences.
"I remain sceptical of current proposals" that seek to "reform ITC legislatively", said Congressman John Conyers. "There's not as much abuse as I first suspected." Congressman Melvin Watt suggested that some companies portrayed as trolls may be legitimate actors. "There is no satisfactory definition based on business models of what constitutes a troll," he asserted.
