Research Handbook on the Economics of Intellectual Property Law
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Research Handbook on the Economics of Intellectual Property Law

Vol 1: Theory Vol 2: Analytical Methods

Edited by Ben Depoorter, Peter Menell and David Schwartz

Both law and economics and intellectual property law have expanded dramatically in tandem over recent decades. This field-defining two-volume Handbook, featuring the leading legal, empirical, and law and economics scholars studying intellectual property rights, provides wide-ranging and in-depth analysis both of the economic theory underpinning intellectual property law, and the use of analytical methods to study it.
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Chapter 8: Empirical studies of the International Trade Commission

Colleen V. Chien and David L. Schwartz


Pursuant to Section 337 of the Tariff Act of 1930, the International Trade Commission (ITC) regularly hears patent cases and provides injunctive relief from infringing imports. Several features of the ITC’s Section 337 authority make it well suited for empirical patent scholarship and policy inquiry. First, while the jurisdiction of Section 337 overlaps with that of federal courts (about 70 percent of ITC 337 cases have a district court counterpart), many of its procedures distinguish it from the district court, including faster adjudication, streamlined procedures, the lack of a jury and counterclaims, and nearly automatic injunctive relief. These characteristics support an analysis of various institutional design features on party behaviors and outcomes. Second, the longstanding overlap between the jurisdiction of the district courts and ITC provides a case study in the coordination between parallel venues litigating the same dispute, which has become more commonplace in light of the rise of inter partes review proceedings, most of which have a parallel district court filing. Finally, because the ITC’s rules require a domestic injury and the frequent grant of cease and desist orders or exclusion orders (which operate similar to district court injunctions), the ITC has come under policy scrutiny. This chapter describes the features of the ITC and the main policy and theoretical questions that have animated study of the ITC’s 337 authority, what we do and don’t know, and possible directions for future research.

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