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ITC May Be Willing to Wait on PTAB, If the Timing is Right

Law360

08 Sep 2020

Mark Whitaker spoke to Law360 about the U.S. International Trade Commission’s (ITC) suspension of the limited exclusion and cease and desist orders it issued against SZ DJI Technology Co. for violating Section 337 of the Tariff Act, signaling that it’s willing to suspend remedial orders in infringement cases where the Patent Trademark and Appeal Board (PTAB) has invalidated the patents at issue.

“The ITC and the PTAB have different statutory mandates, and they’re bound to conclude their own independent reviews [and] investigations,” Mark said. “What typically happens is that [when] a party [files] a petition for review at the PTAB, the ITC traditionally pays no attention to that because under their independent statute, there’s nothing in there that would cause them to pause or stay any investigation that’s going forward, unlike a district court.”

Mark told Law360 that the PTAB generally takes about 18 months to reach a decision, and the ITC takes 16-18 months, so making those timelines sync up as much as possible is key to getting a result like DJI’s.

“As soon as they get an inkling that they may be embroiled in an ITC case, or they’ve been given some notice that some patents may be asserted against them, they should start getting their ducks in a row and looking at IPRs as a route for assisting them,” he said.

Read the full article.

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