2020 saw a marked uptick in unfair import investigations at the International Trade Commission (ITC), with an especially strong close to the year: eight new complaints in December alone brought the year’s total to 62 new complaints to the Commission, well above the ten-year average of 49. Complaints alleging trade secret misappropriation rose particularly, as the ITC becomes increasingly popular due to its speed, jurisdiction and unique remedies.  While just five investigations solely of trade secrets were instituted in the five years of 2011-2015, fifteen such investigations were instituted in the next five years of 2016-2020, including five in 2020 alone.[1]

Continue Reading Unfair Import Investigations Rise at the U.S. ITC in 2020—Particularly as to Trade Secrets

On January 13, the U.S. International Trade Commission (“ITC”) issued the long-awaited public version of its final opinion in the Matter of Botulinum Products (Inv. No. 337-TA-1145), otherwise known as the “Botox case.” As previewed in the ITC’s earlier notice of decision, the ITC’s final opinion affirmed the Administrative Law Judge’s issuance of a 21-month ban on imports and sale of Respondents’ lower-cost alternative to Botox for misappropriation of trade secret manufacturing processes and reversed the finding that Complainant Medytox’s specific strain of botulinum toxin bacteria is a protectable trade secret.

As we previously reported, South Korean company Daewoong Pharmaceutical and its U.S.-based licensee Evolus had been facing a potential 10-year ban of the import and sale of its product, Juveau; however, because the ITC reversed the ALJ’s finding and instead held that the bacterial strain at issue was not a protectable trade secret, the Respondents could not be liable for trade secret misappropriation of the bacterial strain itself. The ITC thus reduced the length of the ban from 10 years to 21 months, accounting for the ITC’s finding that Respondents were liable for theft of trade secrets related to Medytox’s manufacturing process.


Continue Reading Final ITC Ruling in Botox Rival Case Creates More Head-Lines

On August 6, 2020, the U.S. International Trade Commission (“ITC”) released a public version of the Final Initial Determination (“ID”) in the Matter of Botulinum Toxin Products (Inv. No. 337-TA-1145), that, if upheld by the ITC Commission, might signal an expansive view of the ITC’s territorial jurisdiction and the scope of trade secret protection. The ITC’s jurisdiction in trade secret investigations is limited to matters that destroy or substantially injure a “domestic industry in the United States.” An interesting aspect of the ID is that it recommends banning importation of a Botox-competitor product (Jeuveau®) that was found to incorporate misappropriated trade secrets of a foreign Complainant whose domestic licensee and Co-Complainant have yet to make any sales of that product in the United States. The ID also found “domestic injury” based on the licensee’s industry, not the licensed trade secret’s industry. The Commission will issue a final decision in November.
Continue Reading ITC Administrative Law Judge Decision Implicates Scope of Trade Secret Protections