ITC Exclusion Orders - Verify the Impact of General Exclusion Orders
We've written quite a bit about ITC 337 proceedings. One of the issues to watch out for is collateral damage from your general exclusion orders. General exclusion orders usually prohibit the importation of all infringing articles, regardless of their owner, importer, and place of origin, and whether or not the owner or importer participated in the investigation.
Imagine your client, patentee A, wins a general exclusion order against foreign manufacturer B. The order is implemented, and the next thing you know patentee A receives an irate call from a customer or licensee asking why their products are being excluded at the US border. The licensee can be importing a legitimately licensed product manufactured by manufacturer B. The customer can be importing a downstream product excluded on the basis of including a component covered by the exclusion order.
When you receive an exclusion order, you'll need thorough due diligence to ensure current customers and licensees aren't impacted.
