To sue for patent infringement in federal court, a patentee must meet the constitutional requirements of standing: an injury-in-fact which is fairly traceable to the defendant’s conduct and is redressable by the court.¹ Since at least 1990, the U.S. International Trade Commission has applied the federal court standing requirement to its own patent cases.² In the past, that inquiry included the constitutional standing test.³ No longer: in a recent ruling in the case Certain Active Matrix Organic Light-Emitting Diode Display Panels and Modules for Mobile Devices, and Components Thereof, Inv. No. 337-TA-1351, the Commission held that constitutional standing is not required in its Section 337 cases.⁴

However, the Commission was less than crystal-clear about whether this change makes a practical difference. To start, the Commission reaffirmed that at least one complainant in every case must be an owner or exclusive licensee of the asserted patent.⁵ In describing what this means in practice, the Commission stated that “it is appropriate to consider precedent as to whether [complainant] is a ‘patentee’ who can bring a patent infringement action under 35 U.S.C. § 281.”⁶ This statement makes reference to the Commission’s previous practice of effectively collapsing together the requirements of constitutional injury, statutory standing, and sufficient ownership interests to bring a Section 337 action.⁷ The federal courts define a “patentee” for purposes § 281 as one who possesses “exclusionary rights” in the asserted patent.⁸ A nominal owner who transfers away “all substantial rights” in the patent can lose the ability to bring suit for infringement.⁹

Yet, note the restraint in the Commission’s choice of phrase “it is appropriate to consider” is a weaker statement than, for example, “the Commission follows” or “the Commission applies.” Elsewhere, the opinion similarly alludes to the Commission’s use of the federal courts’ statutory standing analysis without explicitly endorsing it: “The terms ‘owner or exclusive licensee’ have been interpreted to be the same as the term ‘patentee’ in 35 U.S.C. § 281.”¹⁰ The Commission leaves unanswered whether there is any daylight between the federal courts’ requirement that a plaintiff possess sufficient exclusionary rights in the patent to bring suit, and the Commission’s rule that the complainant must be an owner or exclusive licensee.

The structure of the Commission’s opinion suggests that there is a difference and that it is easier for a complainant to meet the ITC’s standard. Otherwise, there would have been no particular need for the Commission to wade into the constitutional-versus-statutory distinction that is the main focus of its opinion. Instead, the Commission could simply have decided that there was a factual dispute over whether the complainant actually granted an “unrestricted right … to sublicense” the patent, precluding summary determination regardless of which standard applied.¹¹

To the extent the Commission does depart from the “exclusionary rights” precedent, the idea that any one co-owner or exclusive licensee of a patent may bring a Section 337 case, even if another (non-complainant) entity can freely grant licenses to the patent, has several interesting implications:

1. Although a Section 337 investigation can go forward in this scenario, the respondent could still cause termination of the investigation by obtaining a license from the other entity that is not involved in the case.
2. A respondent could be sued multiple times in the ITC on the same patent by different complainants, as long as each is either a co-owner or exclusive licensee. (As a practical matter, this should be a rare occurrence, because the second complainant will likely be deterred from suing by whatever case developments caused the first complainant to lose or drop its case).
3. It might be possible for a complainant to litigate an entire ITC case at the agency level, but then lack standing to appeal to the Federal Circuit (as sometimes happens in appeals from the Patent Trial and Appeal Board).¹²
4. Third-party litigation funding agreements that defeat district court standing by giving the funder too much control over the litigation may nonetheless prove to be viable in the ITC.

In summary, the ITC's determination that it is not bound by constitutional standing requirements may lower the barrier for complainants, potentially leading to an increase in patent enforcement actions at the ITC. This shift could have significant implications for how patent disputes are litigated, including the potential for multiple suits on the same patent and more flexibility for third-party litigation funding.

[1] Lone Star Silicon Innovations LLC v. Nanya Tech. Corp., 925 F.3d 1225, 1234 (Fed. Cir. 2019) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)).

[2] See, e.g., Certain Catalyst Components and Catalysts for the Polymerization of Olefins, Inv. No. 337-TA-307, Comm'n Op. at 13 (June 18, 1990) ("Catalyst Components") ("[W]e see little basis for inferring a different standing requirement under section 337 than the courts have established in patent infringement cases.").

[3] Certain Audio Processing Hardware, Software, and Products Containing the Same, Comm’n Op. at 9 (April 18, 2018) (“Patentees bringing an action for patent infringement must satisfy constitutional standing and statutory cause of action requirements.”); id. at 8-13 (summarizing legal standards).

[4] Certain Active Matrix Organic Light-Emitting Diode Display Panels and Modules for Mobile Devices, and Components Thereof, Inv. No. 337-TA-1351, Comm’n Op. at 13 (May 15, 2024) (“Insofar as the Commission has previously applied a constitutional standing requirement in the past or suggested that it applies to section 337 investigations, that precedent is hereby overruled.”).

[5] Id. at 15.

[6] Id. at 16.

[7] See, e.g., Audio Processing, Comm’n Op. at 8-13, 25 (connecting the injury requirement with the statutory right to exclude possessed by a “patentee”; assuming, without deciding, that “patentee” status is achieved by having “all substantial rights” in the patent; and finding the complainant satisfied this test).

[8] WiAV Solutions LLC v. Motorola, Inc., 631 F.3d 1257, 1264 (Fed. Cir. 2010).

[9] Sicom Sys., Ltd. v. Agilent Techs., Inc., 427 F.3d 971, 976 (Fed. Cir. 2005).

[10] Display Panels, Comm’n Op. at 14 (citing Certain Optical Disk Drives, Components Thereof, and Products Containing the Same, Inv. No. 337-TA-897, Comm’n Op. at 4 (Jan. 7, 2015)) (emphasis added).

[11] See Display Panels, Comm’n Op. at 16.

[12] The Commission explicitly recognized the possibility of a party being able to participate in an agency proceeding but lacking standing to appeal its result. Id. at 12 n.9 (Citing Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2144 (2016).