USPTO and DOJ Warn Against Using Public Interest as Barrier to Patent Enforcement at ITC

“When patent rights are devalued through ineffective enforcement, the entire innovation ecosystem suffers.” – USPTO and DOJ Joint Comment

The U.S. Patent and Trademark Office (USPTO) and the U.S. Department of Justice (DOJ) filed a joint public interest comment with the U.S. International Trade Commission (ITC) on Tuesday relating to a complaint brought by Netlist in October, arguing that the strong enforcement of valid patent rights best serves the public interest. The filing, in the context of an ITC investigation into certain dynamic random access memory (DRAM) devices, asserts that exclusion orders should be the presumptive remedy for infringement.

In the comment, the agencies argued that reliable patent rights have been a cornerstone of American technological dominance for over two centuries. Without the security of exclusive rights, significant innovations would likely remain in development rather than reach the public. The agencies cited that “James Madison noted in The Federalist No. 43, the utility of patent protection ‘will scarcely be questioned’ because the ‘public good fully coincides…with the claims of individuals’ to their inventions.”

The filing also highlighted the economic importance of intellectual property, observing that IP-intensive industries account for approximately 40% of U.S. gross domestic product (GDP) and support millions of jobs. The comment warned that “when patent rights are devalued through ineffective enforcement, the entire innovation ecosystem suffers.” Moreover, it referenced a decision from Douglas Dynamics, LLC v. Buyers Prods. Co., which recognized that the public’s interest in protecting inventive technology “outweighs any interest the public has in purchasing cheaper infringing products.”

The joint comment also detailed the ITC’s role as a guardian of American innovation at the border. Under Section 337 of the Tariff Act of 1930, the importation of articles that infringe valid U.S. patents is unlawful, which made exclusion orders the statutory default remedy and created a strong presumption in favor of exclusion for patent infringement.

Historically, the ITC has invoked public interest considerations to deny an exclusion order in only a small number of cases. The filing described these instances as involving “truly extraordinary circumstances” related to public health or safety. The agencies emphasized that the Commission has correctly rejected “the general proposition that, if the infringing activity is great enough, the public interest forbids a remedy.”