The U.S. International Trade Commission (ITC) continues to act as a key venue for intellectual property disputes, particularly patent-related matters. The agency’s ability to grant powerful exclusionary remedies makes it an attractive forum for rights holders seeking swift and enforceable relief against infringing imports. However, as Section 337 investigations become more complex, those working in the space must navigate evolving procedural nuances, shifting technology trends, and the Commission’s increasing overlap with other legal forums.
As ITC investigations become more complex, the strategic selection and deployment of expert witnesses has never been more important. Experts not only provide critical technical analysis and economic insights, but they also help shape arguments that align with the ITC’s legal framework and procedural variations. Their testimony can significantly impact a case, making their involvement essential from the earliest stages of an investigation. Beyond subject-matter expertise, successful experts must understand the venue’s unique procedural rules, the tight timelines imposed by the Commission, and the preferences of individual Administrative Law Judges (ALJs). Let’s examine how these factors can play a role in determining how expert opinions are received and leveraged during litigation.
Early Engagement of Experts in ITC Investigations
Given the ITC’s strict timelines, the earlier you begin your expert search, the better. Unlike district court litigation, which often allows for more extended discovery and case development, ITC investigations typically conclude within 16 months. This means that expert witnesses must be identified, prepared, and integrated into the case strategy as early as possible to ensure that they have sufficient time to analyze the accused products, assess patent claims, and refine their opinions.
At the ITC, the timeline for expert witness and discovery milestones follows a structured process. Cases are instituted in about 35 days, with a final target resolution typically set at approximately 18 months (538 days). Expert identification generally occurs around 7.5 months in, with initial and rebuttal reports exchanged between 10 and 11 months. Expert discovery is usually completed by month 11, and fact discovery wraps up around the same time. A final initial determination is reached in about 8 months (240 days), though overall timelines can vary significantly, ranging from just over two months to nearly 18 months.
The recent increase in Section 337 investigations further underscores the need for early expert involvement. In 2024, the ITC saw 52 newly instituted investigations, marking a 41% increase from 2023. Of these, 77% were patent-related, reinforcing the demand for technical experts who can effectively analyze infringement claims.
Technical experts play a particularly critical role in these early stages. They must work closely with legal teams to dissect the asserted patents, compare them against the accused products, and develop clear and concise explanations for their findings. Their ability to communicate complex concepts effectively is crucial, as their testimony must be accessible to ALJs and ITC staff attorneys who may not have deep technical backgrounds in the subject matter.
The Role of Experts in Establishing Domestic Industry
One of the unique aspects of ITC litigation is the domestic industry requirement. Unlike district court patent cases, where a patent holder’s rights are established simply by ownership and validity, Section 337 investigations require complainants to show that they have made substantial investments in the U.S. related to the patented technology.
Economic experts are instrumental in meeting this requirement. Their role involves evaluating the complainant’s expenditures on manufacturing, R&D, and licensing. The challenge often lies in proving that these investments are sufficiently substantial and directly related to the patented technology. This requires deep industry knowledge, an understanding of ITC precedent, and the ability to present complex financial data in a persuasive and accessible manner. This is why it is important to ensure your economic experts are supported by your industry and technical experts, aligning all of your arguments in a clear and concise manner. With an increasing number of ITC cases overlapping with Patent Trial and Appeal Board (PTAB) proceedings and district court litigation, your expert teams are also playing a growing role in ensuring consistency across multiple forums. The ability to reconcile ITC domestic industry arguments with the rest of your case strategy across all parallel proceedings is becoming an essential component of lawyers’ approach when obtaining the best result for their clients.
Trends in Technology and Their Impact on Expert Selection
The types of technology driving ITC disputes are constantly evolving, influencing the kinds of experts needed for Section 337 investigations. In 2024, the most frequently litigated sectors included consumer electronics, telecommunications, life sciences, and advanced manufacturing.
Patent disputes over networking and wireless technologies, semiconductors, and medical devices continue to grow, requiring experts with deep knowledge of these fields. In these cases, selecting the right expert is about more than just technical qualifications—it requires an understanding of industry standards, regulatory landscapes, and prior ITC decisions related to similar technologies.
For example, in cases involving standard-essential patents (SEPs) in telecommunications, experts must not only analyze infringement, but also address licensing practices, fair, reasonable, and non-discriminatory (FRAND) obligations, and global supply chain considerations. Similarly, in pharmaceutical cases, experts must have an in-depth understanding of FDA regulatory requirements, bioequivalence studies, and chemical formulation disputes.
To that end, it’s oftentimes important to have experts with experience from industry, in addition to academic technical experts to best support your arguments. And once again, making sure there is synergy between all of your experts for a particular investigation is paramount to your ultimate success.
How ALJ Preferences Shape the Role of Experts
Each ITC Administrative Law Judge (ALJ) has distinct preferences when it comes to expert testimony. Some judges require highly detailed technical analysis, while other matters require the ALJ to place greater emphasis on economic and domestic industry arguments. Knowledge of each ALJ’s background and previous rulings helps litigators understand these nuances so you can best tailor expert presentations accordingly.
For instance, some ALJs have been known to scrutinize domestic industry claims more rigorously, requiring deeper economic analysis to establish that investments are sufficiently tied to the patented technology. Others may focus more on infringement, placing greater weight on detailed technical demonstrations. Knowing how a particular ALJ has ruled in past cases can help litigants refine their expert strategy to align with judicial expectations. Because of these differences, leveraging resources that provide data concerning individual judges’ decision-making patterns, evidentiary preferences, and past rulings on expert testimony can be a key advantage in shaping expert-driven case strategies.
Integrating Experts into a Broader ITC Litigation Strategy
Successfully integrating expert analysis into ITC investigations requires a cohesive approach that aligns technical, economic, and legal arguments. This begins with ensuring that expert testimony is consistent across different aspects of the case. For example, a technical expert’s infringement analysis should align with the economic expert’s domestic industry argument, reinforcing a unified case narrative.
Preparation is also key. ITC investigations move quickly, leaving little room for revision once testimony is presented. Experts must be rigorously prepared for cross-examination, particularly on issues such as claim construction, infringement analysis, and economic impact assessments. A well-prepared expert not only strengthens the case but also avoids credibility pitfalls that opposing counsel may seek to exploit.
Finally, in cases where multiple experts are involved, coordination of the entire expert team is essential. Many ITC investigations require testimony from a mix of technical, economic, and public interest experts. Ensuring that their testimonies complement one another rather than appear fragmented can make the difference between a strong and weak case.
The Essential Role of Experts
Expert witnesses are more critical than ever in ITC Section 337 investigations. As ITC cases grow in complexity—spanning new technology sectors, increasing in volume, and frequently intersecting with PTAB and district court litigation—the strategic deployment of experts has become a cornerstone of success.
Attorneys handling ITC cases must ensure that their expert teams are not only technically proficient, but also deeply familiar with ITC procedures, ALJ tendencies, and the evolving demands of ITC litigation. Drawing on proprietary ITC reports, case trends, and best practices, litigators can leverage expert testimony to build stronger cases and maximize their chances of securing favorable outcomes in this high-stakes venue.
Reprinted with permission from the March 2025 edition of the New York Law Journal © 2025 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.