The global smartphone patent war is setting records as Apple Inc. vies to prevent competition from Google Inc.’s Android in dozens of court cases across four continents. The United States is in a unique position during this conflict, not just because it has the largest consumer market for smartphones, but because it is the only country that allows patent holders to sue twice once in regular court and simultaneously before a federal administrative agency.
Close observers of recent patent battles may have noticed and been confused by the role of the U.S. International Trade Commission. The ITC earns its place in the patent system by virtue of §337 of the Tariff Act of 1930, which gives the agency the authority to exclude imports it determines infringe a U.S. patent. Under §337, the ITC operates a specialized patent court for imports that is purely redundant, violates U.S. trade obligations and disrupts the integrity of the U.S. patent system. Patent litigation at the ITC is a protectionist relic that needs to go.
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