In order to prevail in a section 337 action before the International Trade Commission (ITC), a complainant must first show the existence of a domestic industry relating to the protected intellectual property (IP) right. There have been a number of recent developments concerning the law of domestic industry. These concern the context of the domestic industry activities, the allocation of litigation expenses to the domestic industry, and the timing of investments that may be considered part of the domestic industry. Despite these changes, the Commission continues its practice of construing the domestic industry requirement flexibly and liberally in order to accommodate smaller complainants.
Global Trade and Customs Journal