PIPLI Comments on Excessive Secrecy at the International Trade Commission

The International Trade Commission (ITC) is a federal agency charged with protecting American industries and ensuring fair competition. Although the ITC is not a court, it has administrative trade judges who conduct investigative hearings and issue orders prohibiting the importation of articles in violation of U.S. law—including patent law. Because the ITC has the power to prevent goods from entering the country—but no power to invalidate wrongly granted patents—it has become a popular forum for patent assertion entities seeking outsized licensing fees for low quality patents.

Unlike federal courts, there is no presumption of public access to ITC proceedings. Companies routinely request and obtain confidential treatment for information they would likely have to disclose in district court litigation. The secrecy available in ITC proceedings makes it even more appealing to patent assertion entities that want to keep their activities and licenses secret.

Even though companies routinely keep information secret in ITC proceedings, there are limits. They are only entitled to confidential treatment for confidential business information—information which, if disclosed, but impede the ITC’s ability to do its job or impair the competitive standing of the information’s source. Given this generous, but finite definition, parties at the ITC usually do not seek to keep basic information secret—such as the names of licensees whose activities they are relying on to argue that their request for an exclusion order will not hurt consumers, economic conditions, or public health in the U.S. Importantly, these licensees are suppliers of electronic devices that are affected by supply chain disruptions and essential to the provision of health care in the wake of COVID-19.

But a patent assertion entity is currently trying to do just that. In a complaint against numerous electronics companies, VideoLabs, Inc. is relying on the activities of two licensees to argue that an exclusion order would not harm the public, but trying to keep the identities of those licensees secret. The ITC asked the public for comments on the impact of VideoLabs’ on U.S. consumers, economic conditions, and public health, but the public cannot accurately or comprehensively comment on these important issues if it does not know who VideoLabs’ licensees are. For example, if VideoLabs’ licensees are Apple and Samsung, it is likely that an exclusion order will have far less of an impact on the availability of smartphones than if those licensees are Hewlett Packard and Netflix.

Because the public needs more information to provide a meaningful response to the ITC’s request, PIPLI filed a statement arguing the ITC should deny VideoLabs’ requests for secrecy and give the public another opportunity to comment once it has the information it needs. We hope the ITC listens. Otherwise, the ITC will become even more vulnerable to abuse and harmful to the U.S. public.