Minnesota Law Review

Blocking Blocks at the Border: Examining Standard-Essential Patent Litigation Between Domestic Companies at the ITC

The United States International Trade Commission was created to protect domestic industry and American workers from illegal foreign trade practices. Increasingly, domestic companies have turned to the ITC seeking relief for the infringement of standard-essential patents (SEPs) by other domestic companies. In exchange for having their patented technologies adopted as an industry-wide standard, these companies agree to license their SEPs on reasonable and non-discriminatory (RAND) terms, even to their competitors. However, prominent American technology companies, including Apple, Microsoft, and Motorola, frequently have been unable to agree to licensing rates. They have pursued infringement cases at the ITC because of its expedited review timeline, experienced administrative law judges, and sole remedy—a complete ban on the importation of the infringing product, known as an exclusion order. As a result, popular consumer electronics such as Xboxes, iPhones, and iPads could be barred from the U.S. market.

This Note examines why the ITC is an inappropriate venue for these SEP cases and the resulting harm to American consumers. The ITC was established to protect domestic industry, and that interest cannot be served when one American company seeks a SEP exclusion order against another American company. The federal court system is better equipped to conduct the careful balancing required in these cases to protect intellectual property rights and American consumers for maximum benefit to the U.S. economy. Congress should amend the ITC statute to bar the ITC from hearing SEP disputes between domestic companies.

:: View PDF

News & Events

  • Welcome

    For nearly one hundred years, the Minnesota Law Review has been a leader amongst academic legal publications. When Professor Henry J. Fletcher launched the journal in 1917, his goal was simple. It was to “contribute a little something to the systematic growth of the whole law.” Since then, the Law [...]

  • Minnesota Law Review Alum Remembered 45 Years After Death

    Minnesota Law Review alumnus Tom Cranna was honored at the Annual Banquet this Spring, 45 years after his death. Mr. Cranna was remembered for his contributions to the journal, the school, and the positive impact he had on his family and friends. The Devil’s Lake Journal published a memorial which [...]

  • Follow MLR on Twitter!

    The Minnesota Law Review is proud to announce that we are now on Twitter. Follow us @MinnesotaLawRev for information and updates concerning the petition period and deadlines, the opening and closing of article submissions, our 2014 Symposium: Offenders in the Community, and all other news concerning our authors and publications. [...]

  • Vol. 97 Lead Piece Cited in Al Jazeera Opinion Piece

    A recent Al Jazeera opinion piece that criticizes the Supreme Court’s Daimler decision cites to Volume 97′s lead piece, How Business Fares in the Supreme Court. You can read the Al Jazeera piece here. Share this: on Twitter on Facebook on Google+

  • Masthead for Volume 99 Board

    The masthead for the Board of Volume 99 of the Minnesota Law Review is now available. You can view the masthead here. Share this: on Twitter on Facebook on Google+


cforms contact form by delicious:days