Cono Carrano Quoted by Law360 on ITC’s 100-Day Early Disposition Pilot Program

Law360 has quoted Akin Gump intellectual property partner Cono Carrano in the article “Rarely Used ITC 100-Day Program Still Has Positive Effect.” The article reports that an International Trade Commission program launched nearly five years ago to resolve some issues in patent cases within 100 days is proving to be an effective tool to streamline cases and improve the quality of patent complaints.

Only six cases have been put through the program, however, which, according to Law360, the commission has used to hold that nonpracticing entities did not meet the requirements to file an ITC patent suit and to invalidate a patent for claiming only abstract ideas. It’s also a sign, the article says, the ITC employs it only when it can be used to dispose of an entire case.

“It’s meant to eliminate the marginal cases, and I think it has been doing that,” said Carrano.

In some instances, according to the article, the ITC has denied requests to have a case put in the 100-day program when the issue would only resolve the case with regard to certain parties or certain patents.

Carrano said, “It can shorten the proceedings quite a bit, but it has to be the right case.” The infrequent use of the program, he said, is due to the challenge of identifying an issue that can both fully resolve a case and that is simply enough to be addressed in 100 days. Continuing, he said even if the program is requested and not granted, “That can put a light on an issue that might be case-dispositive on summary determination.”

Looking ahead to the future of the program, the ITC proposed rules to make it permanent in 2015, but has not yet adopted them. Still, with only a few examples to go on, Carrano said the program has changed how litigants approach ITC patent cases in ways that can benefit both sides.

“On the complainant’s side, it gives you pause to think. It’s another hurdle to be concerned with if you have a weak, case-dispositive issue, so that’s positive in terms of what’s brought to the ITC. And for respondents, it’s a chance get out from under an investigation relatively quickly and inexpensively.”