THE IMPACT OF LASHIFY – WHICH COMPANIES MAY ACCESS THE ITC NOW?
The US International Trade Commission (ITC) has long been one of the most powerful tools for protecting innovators’ intellectual property (IP).
Its speed (completing investigations in just over a year), the ability to prevent a defendant-filed inter partes review from being instituted before the US Patent and Trademark Office, and the fact that prevailing IP rights holders win exclusion orders without having to satisfy the eBay requirements imposed by district courts, have all contributed to making the ITC one of the most popular venues for US patent litigation.
Roughly one quarter of all patent trials in the US occur at the ITC each year.
The domestic industry requirement – a traditional barrier
Despite its many advantages, ITC access has historically been limited. The governing statute – 19 USC section 1337 – only allows IP rights holders who meet the “domestic industry requirement” to file suits at the ITC. To satisfy this requirement, the complainant or their licensee must have a product that practices or uses the infringed IP, and make significant or substantial investments in specific activities within the US related to that product.
Traditionally, complainants demonstrated compliance by showing investments in plant or equipment, labour or capital, or the exploitation of IP, such as research or licensing. However, longstanding ITC precedent excluded investments related to sales, marketing, warehousing and distribution.
As a practical result, only companies with manufacturing or substantial research and development (R&D) activities in the US could access the ITC. This proved especially challenging for companies in industries like toys, home goods and fashion, where research costs are relatively low, even for successful products.
Jul-Sep 2026 issue
Kilpatrick Townsend & Stockton LLP