The ITC’s 100-day review procedure is a powerful tool that can reshape strategy before an investigation even begins. For companies, the challenge is clear: how do you prepare for a proceeding designed to decide case-dispositive issues on a compressed timeline?
To explore this question, we turned to WIT President Michael Connelly. With more than 25 years in IP litigation and firsthand experience as the complainant in 337-TA-874, the first case ever designated for a 100-day review, Connelly brings both practical insight and strategic perspective.
Understanding the 100-Day Review Process
A 100-day review is a fast-track procedure the ITC uses to decide threshold issues early in an investigation. The Commission designates specific questions – such as domestic industry, standing, importation, or patent eligibility – for resolution within about three months of institution. The goal is efficiency: if the issue is case dispositive, the review can end the matter before the full evidentiary process, saving resources for the Commission and the parties.
In this Q&A, Connelly shares his views on when the Commission uses the procedure, how it changes the role of experts, and why early and precise expert selection is essential in these high-stakes reviews.
WIT: What types of issues are most appropriate for a 100-day review?
Connelly: Having owned the complainant in 337-TA-874, the first 100-day proceeding, I experienced firsthand how this procedure impacts the business behind the case. The Commission has used it for threshold issues like domestic industry (most common with 8 of 15 cases), Section 101 patent eligibility, standing, and importation. In February 2023, they even used it sua sponte for injury in a trade secret case (337-TA-1352).
As an expert agency, we focus on getting the right technical and industry experts in place fast when these issues arise. The truth is that the possibility (or reality) of a 100-day review requires expert selection to be right and fast. Our role lies in helping counsel quickly identify whether they need technical validation, industry context, or regulatory expertise to support their documentary case.
WIT: How does the Commission evaluate whether a proposed 100-day issue is “case-dispositive”?
Connelly: The Commission maintains strict gatekeeping, and only about 3% of investigations have received the 100-day treatment. The issue must be capable of ending the entire investigation (not just discrete elements) and triable on a compressed record. From our expert sourcing perspective, “triable on a compressed record” means documentary evidence with minimal expert testimony.
In 337-TA-874, as the complainant owner, I learned that the compressed timeline impacts complainants uniquely. Even if rarely granted, preparing for the possibility shapes your entire approach. The threat ofa 100-day review forces discipline in your initial filing and expert selection.
WIT: What are the key procedural differences for expert work?
Connelly: The compression is significant, typically 7-9 weeks from institution to hearing. Consulting experts in this period can be crucial, but even the smallest of scheduling issues can be a major problem. Our experts understand the venue and the unique scheduling demands it imposes.
WIT: How should expert selection be approached when a 100-day review is a possibility?
Connelly: I always think you need to assume anything could happen and plan accordingly. Early retention is critical. We often find the process of selecting experts is a necessary step in refining the need itself.
While economists often handle statutory investment analysis for domestic industry, our industry experts provide crucial context about manufacturing practices, standards adoption, or market conditions. The disconnect of a general economist to a particular industry is best handled by partnering with an expert from the industry.
WIT: What common mistakes occur with expert testimony in 100-day proceedings?
Connelly: I would not say there are mistakes, but we do see the impact of relying on generalists. We see an increasing skepticism over economists who claim experience in an industry that is entirely from prior litigation experience. Pairing them with an industry expert removes this potential weak link in the case.
WIT: Does 100-day review promote early resolution or just front-load costs?
Connelly: In my (limited) experience, it is both. As 874’s complainant, I fought the institution precisely because of the immediate cost burden through compressed timelines, accelerated discovery, and compressed preparation. It was an unplanned for drain (and one of the few ways to shift the attention to the complainant in an NPE situation).
But that same pressure created settlement leverage. The data backs this up: 87% of 100-day cases (13 of 15) resolve early: 8 before the ALJ decision, 3 shortly after. This compression forces business decisions, not just legal ones. From today’s expert-sourcing perspective, early retention of the right expert can actually reduce total costs by identifying problems before they become expensive surprises.
WIT: How do 100-day proceedings intersect with public interest factors?
Connelly: Public interest typically comes at remedy, but the Commission’s February 2023 sua sponte use for injury in the 337-TA-1352 pharmaceutical trade secret case shows evolution. Viking Therapeutics needed to prove future market injury, complex analysis the Commission wanted resolved early.
When these questions arise early, industry experts – not economists – provide the most compelling testimony about market impact or competitive effects, like the use of former FDA officials for drug cases, former FCC personnel for telecom. Regulatory expertise trumps economic modeling for public interest issues.
WIT: What advice would you offer for an attorney before their first 100-day review?
Connelly: If you are a complainant, avoid it. It is no secret it creates pain for the complainant, but I can say that it was worse than you might expect. I understand why we continue to see petitions for the review despite them rarely being successful.
Beyond that, bringing in unbiased industry experts early, before you know if 100-day will be imposed, can strengthen your position whether you’re seeking or opposing designation. It shows you have substantive support and a connection to the reality of the situation. This preparation can transform what looks like a defensive petition into something with real strategic value.
How WIT Can Assist in 100-Day Reviews Before the ITC
WIT’s expertise in ITC matters is reinforced by its direct involvement in numerous Section 337 Investigations and a team comprising professionals experienced in practicing before the ITC. This deep understanding of Commission proceedings enables WIT to provide clients with tailored expert teams qualified to address each investigation’s complexities.
To learn more about WIT’s ITC Practice, contact us or visit https://www.witlegal.com/testifying-experts-itc-investigations/.