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Authors: Jonathan Musch and Isabel Peraza

When a company discovers that a foreign entity is infringing its intellectual property, the initial decision is where to bring an enforcement action. Federal district courts are by far the most common venue for cases. Yet for certain rights holders, the U.S. International Trade Commission (ITC) is a unique and powerful alternative. Choosing between these forums—or using both—requires a clear understanding of how the ITC works, how it differs from district court litigation, and what types of relief each can provide.

What is the ITC, and What Does It Do?

The ITC is a federal agency based in Washington, D.C. that is responsible for investigating and adjudicating unfair trade practices.  The ITC’s purview includes investigating intellectual-property infringement under Section 337 of the Tariff Act of 1930.[1] Although it is not a court, the ITC conducts Section 337 proceedings through administrative law judges, who oversee discovery and can conduct full trials (called “investigations”) to determine whether imported goods infringe upon United States rights. Unlike district courts, which can award monetary damages, the ITC’s primary remedy is an exclusion order—a ruling that directs U.S. Customs and Border Protection to block infringing products from entering the United States.[2] As such, these actions are only available in cases where the alleged infringing product is being imported into the United States.

How ITC Proceedings Work

An ITC investigation begins by filing a complaint which alleges that imported products infringe a valid U.S. patent or other U.S. IP right. This complaint differs significantly from a typical federal complaint because it must provide more detailed evidence to support the claims. Based on the complaint, the ITC will make a preliminary assessment of whether to institute the investigation. If the ITC agrees to institute the investigation it proceeds more quickly than a case in federal court, typically reaching a final determination on the merits within 18 months.[3] The investigation involves limited discovery on an accelerated timeline. The trial-like hearing results in an initial determination from the administrative law judge, which the full Commission then reviews.

One of the defining features of ITC litigation is the domestic-industry requirement. To bring a case, the complainant must show that it has made a significant investment in the United States using the rights asserted. This investment can take various forms, including manufacturing, engineering, research and development (R&D), or licensing. The domestic-industry requirement limits the ITC proceedings to entities with active U.S. economic interests. Entities that own patents but do not manufacture or sell products based on that intellectual property, often called non-practicing entities or “NPEs,” might not be able to satisfy the requirements. Similarly, entities that practice the intellectual property at issue overseas may not satisfy the domestic-industry requirement.

Even if infringement is found, the Commission must consider whether excluding the infringing products would harm the public interest.[4] This includes assessing potential impacts on public health and welfare, as well as competitive conditions in the United States economy, and the production of like or directly competitive articles. Another way the Commission ensures that an exclusion order will not harm the public interest is through a presidential review period, during which the President can veto the decision. Though a presidential veto of an ITC decision is exceptionally rare, it remains an added layer of oversight unique to the ITC.

How the ITC Compares to District Courts

District courts offer a broader set of remedies than the ITC, including the ability to award monetary damages and permanent injunctions. They also have broader jurisdiction, allowing them to consider cases involving both imported and domestically produced infringing goods. Unlike the ITC, district courts are not limited by public-interest considerations, nor are they subject to presidential review. However, district court litigation typically takes much longer, often two to four years, and involves extensive discovery, pretrial motions, and the possibility of a jury trial.

Making the Right Choice of Venue

Choosing between the ITC and district court requires a thoughtful assessment of enforcement goals, legal requirements, and business implications. Filing in the ITC is particularly effective when the infringing product is made abroad and the rights holder’s goal is to quickly stop those goods from entering the U.S. market. Its simplified service requirements, fast timelines, powerful exclusion orders, and unique ability to target importers and manufacturers make it a strong tool for companies with active U.S. operations seeking to protect their intellectual property.

In other situations, the ITC may not be the right venue for a matter. If the rights holder seeks to recover damages, for example, the ITC is not a viable option. Likewise, entities that cannot satisfy the domestic industry requirements cannot bring a Section 337 claim. District Courts, by contrast, can issue awards for damages and do not have any such domestic industry requirements.

For many patent holders, a dual-track strategy can be a highly effective approach. Filing in both the ITC and district court allows patent holders to pursue immediate market exclusion while also seeking long-term monetary compensation. Though not binding on district courts, ITC decisions can also create leverage in district court litigation, potentially prompting early settlements. The two venues can thus complement each other when used in tandem.

Ultimately, selecting the correct forum depends on the specifics of the infringement, the nature of the accused products, the location and business models of the parties, and the ultimate objectives of the rights holder. Consultation with experienced IP counsel is critical to tailoring a strategy that maximizes both legal and commercial impact. Hilgers Graben’s experienced intellectual property litigation team can help patent holders effectively navigate the complexities of both the ITC and district courts to enforce their rights and protect their competitive position.

About the Authors

Jonathan Musch, Partner

Jon is a litigator whose practice is directed to providing solutions for clients of all sizes, tailoring the approach to an understanding of the client’s business goals. Follow him on LinkedIn here.

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Isabel Peraza, Associate

Isabel is a litigator, whose practice focuses on complex commercial litigation, with a particular emphasis on intellectual property litigation. Follow her on LinkedIn here.

[1] 19 U.S.C. § 1337.

[2] 19 U.S.C. § 1337(d).

[3] See Section 337 Statistics: Average Length of Investigations, USITC (Apr. 11, 2025), https://www.usitc.gov/intellectual_property/337_statistics_average_length_investigations.htm (providing average length of investigations in which the ITC rendered a final determination on the merits).

[4] 19 U.S.C. § 1337(d)(1).