The Nuclear Option: How the ITC Has Become Patent Owners’ Most Powerful Weapon — And Why More NPEs Are Pulling the Trigger

An analysis of the U.S. International Trade Commission’s Section 337 powers, the landmark Lashify decision, NPE filing trends, and the multi-forum strategies reshaping patent enforcement

April 8, 2026

Introduction: When Import Bans Speak Louder Than Damages

On April 1, 2026, the U.S. International Trade Commission instituted Investigation No. 337-TA-1496, captioned In the Matter of Certain Display Devices, Streaming Players, and Components Thereof. The complainant, InnoTV Labs, LLC of Las Vegas, Nevada, had filed its complaint on March 2, 2026, asserting six patents against ten respondents spanning three countries, including:

• Hisense Co., Ltd. and its affiliated entities in China, Mexico, and the United States;

• Roku, Inc. of San Jose, California;

• and Purple Tag Media Technology entities in Shanghai, Shenzhen, and Mexico City.

  
  

The patents at issue—originally developed by LG Electronics and acquired by InnoTV through assignment—cover technologies embedded in smart televisions, LED televisions, streaming devices, and their hardware and software components. The Complaint is available here.

What makes this case remarkable is not merely its scope, but its strategic architecture. On the same day InnoTV filed its ITC complaint, it also filed parallel patent infringement lawsuits in the Eastern District of Texas against Hisense and in the Western District of Texas against Roku and Purple Tag.

This coordinated, multi-forum assault represents the state of the art in modern patent enforcement: using the ITC’s unique powers to create existential pressure on respondents while simultaneously preserving damages claims in federal district court.

This article examines why the ITC has become the venue of choice for sophisticated patent owners, how the landmark Lashify v. ITC decision has expanded access to this forum, why non-practicing entities are increasingly filing Section 337 complaints, and how the dual-filing strategy of ITC plus district court creates compounding leverage that few respondents can ignore.

I. The ITC’s Unique Powers: Why Section 337 Is the Patent Owner’s Best Friend

The U.S. International Trade Commission operates under Section 337 of the Tariff Act of 1930, as amended (19 U.S.C. § 1337), which prohibits unfair methods of competition and unfair acts in the importation of articles into the United States. While the statute covers various forms of unfair competition, patent infringement cases dominate the ITC’s Section 337 docket. Understanding why requires appreciating three features that distinguish the ITC from every federal district court in the country: speed, remedy, and the irrelevance of eBay.

Speed That Changes the Calculus

Section 337 investigations operate on a timeline that would be considered science fiction in most district courts. The ITC typically completes investigations within fifteen to eighteen months from complaint filing to final Commission determination. Evidentiary hearings—full trial-like proceedings with live witnesses, expert testimony, and documentary evidence—typically occur within eight to ten months of the complaint filing. By contrast, the median time to trial in a federal patent case hovers between three and five years, depending on the district. This speed is not optional; it is structural. Within forty-five days of instituting an investigation, the Commission sets a target date for completion, and administrative law judges manage their dockets with the relentlessness of a war room. Discovery is compressed. Motions are decided rapidly. There is no motion to dismiss, no Rule 12(b)(6) gauntlet, and no years-long discovery slog. The compressed timeline creates enormous practical pressure on respondents who must simultaneously staff an aggressive litigation while continuing to import the very products under investigation.

The Exclusion Order: A Remedy Without Parallel

If the ITC finds a violation of Section 337, it does not award monetary damages. Instead, it issues an exclusion order directing U.S. Customs and Border Protection to stop infringing articles from entering the United States at every port of entry. This remedy is enforced in rem—against the articles themselves—meaning it operates regardless of whether the importer was named as a respondent, regardless of the supply chain’s complexity, and regardless of future corporate restructurings or shell-company evasions. The Commission may issue either a limited exclusion order, targeting specific respondents’ products, or a general exclusion order, barring all infringing articles regardless of source. In addition, the ITC can issue cease and desist orders against named domestic respondents, preventing the sale of commercially significant inventory already present in the United States. The combined effect is a complete market shutdown for the accused products.

Consider the practical impact. When Masimo obtained an exclusion order against Apple’s blood-oxygen-monitoring Apple Watch models, Apple was forced to temporarily halt sales and ultimately redesigned its devices to remove the accused functionality. That is the power of the ITC: it can compel the world’s most valuable company to pull products from shelves. No district court damages award carries that visceral, immediate commercial consequence.

The eBay-Free Zone

In eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006), the Supreme Court held that patent owners seeking permanent injunctions in district court must satisfy a traditional four-factor equitable test, including irreparable harm and inadequacy of monetary damages. This decision effectively eliminated permanent injunctions for most non-practicing entities and many practicing entities that license rather than manufacture. The ITC operates in an entirely different universe. Section 337 does not require the four-factor eBay analysis to issue exclusion orders. If the Commission finds a violation, it is statutorily required to issue a remedy unless doing so would be contrary to the public interest. This structural advantage is transformative for patent owners—particularly NPEs—who would face near-certain defeat on the injunction question in district court but can obtain the functional equivalent of a nationwide injunction (and then some) at the ITC.

II. The Lashify Revolution: How the Federal Circuit Opened the ITC’s Doors

For decades, the ITC’s domestic industry requirement served as a significant gatekeeping mechanism, particularly for entities that did not manufacture products in the United States. Under 19 U.S.C. § 1337(a)(2) and (a)(3), a complainant must demonstrate that a domestic industry exists or is in the process of being established with respect to the articles protected by the asserted patents. This requirement has both a technical prong (showing that domestic articles practice the patent) and an economic prong (showing significant domestic investments).

The economic prong under Section 337(a)(3) provides three alternative bases: (A) significant investment in plant and equipment; (B) significant employment of labor or capital; or (C) substantial investment in exploitation, including engineering, research and development, or licensing. For years, the ITC interpreted subsection (B) narrowly, excluding expenditures on sales, marketing, warehousing, quality control, and distribution—activities the Commission characterized as those of a “mere importer”—from qualifying as significant employment of labor or capital absent accompanying domestic manufacturing activities.

On March 5, 2025, the Federal Circuit shattered this framework in Lashify, Inc. v. International Trade Commission, 130 F.4th 948 (Fed. Cir. 2025). Lashify, a U.S. company that designed, marketed, and distributed artificial eyelash extensions manufactured abroad, had been denied relief by the ITC because its domestic expenditures were deemed insufficient—the Commission excluded its sales, marketing, warehousing, quality control, and distribution expenses. A divided Commission affirmed the ALJ’s finding, with the majority reasoning that sales and marketing alone could not satisfy the domestic industry requirement.

The Federal Circuit vacated the Commission’s determination, holding that Section 337(a)(3)(B)’s text is “straightforward”: it requires a “significant employment of labor or capital” without any limitation on the type of activity to which that labor or capital is directed. Crucially, the court invoked the Supreme Court’s Loper Bright Enterprises v. Raimondo decision to exercise independent judgment rather than deferring to the ITC’s long-standing interpretation. The court found no statutory basis for the Commission’s categorical exclusion of sales and marketing activities, rejecting the “mere importer” doctrine as inconsistent with the plain language of the statute.

Coming on the heels of Wuhan Healthgen Biotechnology Corp. v. ITC (Feb. 7, 2025), which held that even small domestic investments can be “significant” for domestic industry purposes, Lashify represents the most important appellate decision on the domestic industry requirement in at least a decade. Together, these decisions dramatically lower the barrier to entry at the ITC, opening the forum to companies that design products domestically but manufacture abroad, companies whose primary U.S. activities involve marketing and distribution, and—critically—non-practicing entities whose domestic activities include licensing, litigation, and investment in patent exploitation.

III. NPEs at the ITC: The Numbers Tell the Story

The ITC maintains detailed statistics on Section 337 investigations brought by non-practicing entities, categorizing complainants into two groups. Category 1 NPEs include inventors, research institutions, universities, startups, and manufacturers whose products do not practice the asserted patents—entities that typically rely on licensing to satisfy the domestic industry requirement. Category 2 NPEs are entities whose business model primarily focuses on purchasing and asserting patents.

The data from the Commission’s own statistics reveal a clear trend of NPE engagement with the ITC over the past decade:

• In 2022, NPE filings surged to their highest level in a decade, with 8 Category 1 and 11 Category 2 investigations out of 59 total—meaning roughly 32% of all Section 337 investigations that year were brought by NPEs.

• In 2023, NPE activity shifted, with 10 Category 1 NPE investigations (the highest on record) and only 1 Category 2, reflecting a trend toward inventor-led and university-driven enforcement.

• By 2025, the Commission recorded 48 total investigations, of which 6 were brought by Category 1 NPEs and 5 by Category 2 NPEs—a combined NPE share of approximately 23%, consistent with the elevated levels seen since 2020.

These numbers are likely to accelerate in 2026 and beyond for several converging reasons. First, the Lashify and Wuhan Healthgen decisions have lowered the domestic industry barrier, making it easier for NPEs to establish the economic prong through licensing activities, R&D investments, and even marketing expenditures. Second, the Trump Administration has expressed support for Section 337 enforcement, and its broader trade and IP agenda portends a favorable environment for complainants. Third, practitioners widely anticipate that pent-up demand from the 2025 federal government shutdown—during which the ITC was unable to accept new complaints for forty-three days—will translate into a surge of filings in 2026. In the month following the shutdown’s conclusion alone, twelve new Section 337 complaints were filed, suggesting strong latent demand.

The InnoTV Labs investigation is itself illustrative of this trend. InnoTV is a patent monetization entity that acquired its portfolio from LG Electronics—a classic Category 2 NPE model—and chose to file simultaneously at the ITC and in two federal district courts in Texas. This is the multi-forum enforcement playbook that increasingly characterizes NPE strategy at the highest levels.

NPEs Are Not Patent Trolls: the Distinction Matters

Any serious discussion of NPE activity at the ITC must confront the deliberate conflation of non-practicing entities with so-called “patent trolls”—a pejorative coined by an Intel litigator in the late 1990s and weaponized by BigTech ever since to discredit legitimate patent enforcement. The distinction is not semantic; it is fundamental. Patent trolls, in the narrow and accurate sense, are bad actors that exploit the cost of litigation to extract nuisance settlements—typically $50,000 or less—on patents with weak validity and questionable infringement reads. Their business model depends not on the strength of their patents but on the asymmetry between the cost of defending a lawsuit and the cost of paying to make one go away.

These actors do exist but there are only a handful at this point, and I am not supporting true trolls. But the deliberate extension of the “troll” label to encompass all non-practicing entities is, as Roberto Dini has argued, “disingenuous at best, dishonest at worst.” The term has been “perversely extended to any NPE,” clouding an understanding of the critical role that legitimate non-practicing entities play in the innovation ecosystem. Universities and research institutions are NPEs. Individual inventors who lack the resources to manufacture products are NPEs. Companies like Qualcomm—one of the world’s most prolific innovators and my former employer—function as NPEs with respect to large portions of their patent portfolios that they license rather than practice directly. The average American garage inventor, the retired engineer, the university professor whose lab produced a breakthrough—all are NPEs by definition.

Far from being parasitic, legitimate NPEs serve essential functions in the patent ecosystem. They are market makers for intellectual property, creating liquidity in a market where patents would otherwise languish unenforced in the hands of inventors who lack the millions of dollars required to litigate against well-funded corporate infringers. As patent enforcement scholars have documented, one of the largest risks for a successful inventor is success itself: breakthrough inventions invite predation by large market incumbents who adopt the technology and dare the inventor to sue. For the patent system to function as Congress intended—as a mechanism to incentivize disclosure and reward innovation—inventors must have a realistic path to enforcement.

NPEs provide that path. They acquire patents from inventors, universities, and companies that cannot afford to enforce them; they invest in the licensing infrastructure, claim analysis, and litigation necessary to hold infringers accountable; and they share the proceeds with the original innovators. Without NPEs, the patent system’s promise of exclusive rights would be hollow for all but the largest corporations, and the constitutional bargain—disclosure in exchange for a time-limited monopoly—would collapse for the very inventors the system was designed to protect. The Marcum LLP report on patent remedies found that over a twenty-year study period, only 23% of patent remedies were awarded to NPEs, demolishing the narrative that NPEs dominate the litigation landscape. The real problem, as that research concluded, is not excessive enforcement by NPEs but the inability of patent owners, especially small ones, to enforce their rights against well-resourced infringers.

The policy implications are significant. Legislative proposals like the Advancing America’s Interests Act (AAIA), which would restrict NPE access to the ITC by requiring that licensing-based domestic industry be tied to an actual product and that licensees affirmatively join the complaint, would not merely inconvenience patent assertion entities. They would eliminate the enforcement mechanism that universities, research laboratories, individual inventors, and small companies rely on to vindicate their intellectual property rights against multinational corporations. When Congress and commentators evaluate NPE activity at the ITC, they should remember that the “troll” narrative was manufactured by the very BigTech companies that benefit most from efficient infringement, which is the practice of using patented technology without a license, daring the patent owner to sue, and exploiting the cost and duration of litigation to avoid paying fair value for the innovation they have appropriated.

IV. How NPEs Satisfy the Domestic Industry Requirement

The domestic industry requirement is the most commonly cited objection to NPE access to the ITC. After all, if an entity does not manufacture products, how can it demonstrate a “domestic industry”? The answer lies in subsection (C) of Section 337(a)(3), which provides that a domestic industry exists if there is “substantial investment in its exploitation, including engineering, research and development, or licensing.”

This licensing-based prong has been the primary vehicle for NPEs to establish domestic industry at the ITC. The Federal Circuit has confirmed that licensing activities—including patent licensing negotiations, enforcement litigation undertaken as part of a licensing program, and investments in building and maintaining a licensing infrastructure—can satisfy the domestic industry requirement if they constitute “substantial” investment. Critically, the complainant must show that articles exist that practice the asserted patents (the technical prong), meaning the licensee’s products or the complainant’s own products must embody the patented technology.

Post-Lashify, the landscape is even more favorable. NPEs that maintain U.S. offices, employ licensing professionals, invest in patent prosecution and portfolio management, or engage in research and development activities in the United States can now count a broader range of domestic expenditures toward the economic prong. The categorical exclusion of sales-adjacent activities has been eliminated, and the Wuhan Healthgen decision confirms that even modest domestic investments can be deemed “significant” when measured against the relevant context. For an entity like InnoTV Labs, which holds an assigned portfolio of LG Electronics patents and likely maintains a domestic licensing and enforcement operation, establishing domestic industry has become a substantially more manageable undertaking than it was even two years ago.

V. The Dual-Filing Strategy: ITC Plus District Court as Force Multiplier

InnoTV Labs’ decision to file simultaneously at the ITC and in federal district court is not coincidental—it is the gold standard of modern patent enforcement strategy. The two forums offer complementary advantages that, when combined, create a leverage structure greater than the sum of its parts.

Complementary Remedies

The ITC offers injunctive relief in the form of exclusion orders and cease and desist orders but cannot award monetary damages. Federal district courts can award compensatory damages (including reasonable royalties and lost profits) and, in cases of willful infringement, enhanced damages up to treble the compensatory amount. By filing in both forums, the patent owner pursues the full spectrum of remedies: the existential threat of an import ban at the ITC and the financial exposure of a damages judgment in district court. This one-two punch forces respondents to fight a two-front war with different risk profiles, different timelines, and different strategic considerations.

The ITC’s Timeline as a Pressure Accelerator

Because the ITC investigation will typically reach a final determination years before the district court case goes to trial, the ITC effectively creates an early forcing function. A respondent facing an adverse initial determination at the ITC—or even the realistic prospect of one—faces the immediate possibility of losing access to the U.S. market. This concentrates the mind in ways that a distant trial date in district court simply does not. Many respondents settle during or immediately after the ITC proceeding because the commercial cost of an exclusion order exceeds any rational damages calculation. The district court case then either settles as part of a global resolution or continues on its own timeline, but the patent owner has already extracted significant concessions through the ITC track.

Claim Construction and Issue Preclusion

The ITC’s claim construction determinations, while not formally binding on district courts, are highly persuasive and frequently adopted. A favorable Markman ruling at the ITC gives the patent owner a significant strategic advantage in the parallel district court proceeding. Some district courts will stay the case pending the ITC’s determination, effectively allowing the patent owner to litigate claim construction and infringement at the ITC first and then leverage those rulings in the damages case. While the doctrine of issue preclusion (collateral estoppel) does not automatically apply to ITC determinations in district court, the practical reality is that an ITC finding of infringement creates enormous settlement pressure and informs the district court’s analysis.

PTAB Insulation—And the New Fintiv Landscape That Makes It Even Stronger

Respondents in district court patent cases frequently file inter partes review (IPR) petitions at the Patent Trial and Appeal Board, seeking to invalidate the asserted patents. District courts may stay litigation pending IPR outcomes, potentially delaying the case for years. The ITC, however, almost never stays its investigations pending IPR proceedings because the compressed ITC timeline means the investigation will typically conclude before the PTAB issues a final written decision. This PTAB insulation is a critical tactical advantage for patent owners: the ITC investigation proceeds unimpeded while the IPR challenge plays out on a separate track, forcing respondents to defend on infringement and validity simultaneously across multiple forums.

But the PTAB insulation story has become even more compelling under the dramatically reshaped discretionary denial regime implemented by USPTO Director John Squires and Acting Director Coke Morgan Stewart. In February 2025, Acting Director Stewart rescinded former Director Kathi Vidal’s 2022 Fintiv memorandum, which had created a near-automatic carve-out from discretionary denial when petitioners offered Sotera stipulations.

On March 24, 2025, Chief Administrative Patent Judge Scott Boalick issued a memo confirming that ITC parallel proceedings would no longer be exempt from the Fintiv analysis. This reversed Vidal’s prior exemption that had shielded IPR petitions from denial based on pending ITC investigations. Two days later, on March 26, 2025, Acting Director Stewart formalized a bifurcated institution process in which the Director personally evaluates discretionary denial before the PTAB panel ever reaches the merits. Under this framework, the proximity of a trial date or an ITC’s target date for final determination is again a central factor weighing in favor of denial.

Director Squires, confirmed in September 2025, has continued and accelerated this trajectory. He centralized all institution authority in the Director’s office, proposed new rules that would require mandatory Sotera-Plus stipulations as a necessary but not sufficient condition for institution, and introduced “settled expectations” as an additional discretionary denial factor. Through February 2026, Director Squires has discretionarily denied approximately 64% of all petitions he has considered—a staggering rate that reflects a fundamental transformation of the IPR landscape.

The implications for ITC complainants are profound. Consider a patent asserted exclusively at the ITC, without a parallel district court action. The ITC’s target date for final determination will typically fall within fifteen to eighteen months of institution. An IPR petitioner filing against that patent faces a near-certain Fintiv denial: the ITC proceeding will conclude well before the PTAB could issue a final written decision (which requires approximately eighteen months from petition filing), and the Director’s office has shown no hesitation in denying petitions where a parallel proceeding will resolve the dispute first.

Even where the patent is asserted in both the ITC and a slower-moving district court, the ITC’s compressed timeline independently supports discretionary denial, and the patent owner can further bolster its position by pointing to the ITC’s target date as the operative “trial date” for Fintiv purposes. The net effect is that the ITC’s speed now serves a dual function: it accelerates the merits determination and simultaneously shields the asserted patents from the primary validity challenge mechanism available to respondents.

This convergence of ITC speed and PTAB restriction creates what may be the most patent-owner-friendly enforcement environment in a generation. A complainant filing at the ITC can credibly expect that its patents will not face IPR institution, that the ITC investigation will proceed to hearing and determination on its original timeline, and that the respondent’s only validity defense will be the one presented to the administrative law judge under the clear and convincing evidence standard—not the lower preponderance standard available in IPR. For sophisticated patent owners and their counsel, this is not merely a tactical advantage, but a strategic paradigm shift.

Global Settlement Dynamics

The combination of ITC and district court proceedings creates a powerful settlement dynamic. The respondent faces:

(1) the prospect of a U.S. import ban within fifteen to eighteen months;

(2) potential damages liability in district court;

(3) the cost and distraction of defending across multiple forums; and

(4) the uncertainty of coordinating IPR, ITC, and district court strategies simultaneously.

For multi-national respondents like Hisense—with manufacturing operations in China and Mexico, a U.S. sales presence, and a growing brand in the American consumer electronics market—the commercial implications of an exclusion order are staggering. The rational response for many respondents is a licensing agreement that resolves all pending proceedings globally.

VI. The InnoTV Labs Investigation: A Case Study in Modern Patent Enforcement

The InnoTV Labs investigation illustrates virtually every theme discussed in this article. InnoTV, a Las Vegas-based entity that acquired six patents originally developed by LG Electronics, has constructed a textbook multi-forum enforcement campaign against major players in the consumer electronics and streaming industries.

The scope of the ITC investigation is significant. The Commission’s notice identifies claims across all six asserted patents, encompassing dozens of individual claim limitations directed to smart televisions, LED televisions, streaming devices, and their hardware and software components. The respondent group is extensive and multinational: six Hisense entities (spanning China, the United States, and Mexico), Roku, and three Purple Tag Media Technology entities in China and Mexico. InnoTV has requested a limited exclusion order and cease and desist orders.

Simultaneously, InnoTV filed district court actions in the Eastern and Western Districts of Texas, the two most active patent litigation venues in the country. This forum selection is deliberate: the Eastern District of Texas, under Chief Judge Rodney Gilstrap (and now his successor, Judge Amos L. Mazzant III), has deep expertise in patent cases and historically favorable procedures for efficient adjudication of patent cases. The Western District of Texas offers separate strategic options. By splitting the district court cases between two jurisdictions and maintaining the ITC investigation, InnoTV has created a three-front enforcement posture that maximizes pressure on each respondent.

The asserted patents—covering display and streaming technologies developed by LG Electronics, one of the world’s leading innovators in display technology—carry the credibility and technical depth of a major R&D operation. Respondents will need to contend not only with the patents’ claims but with the prosecution histories, priority dates, and technical specifications that LG’s engineering teams produced. This portfolio strength, combined with the multi-forum strategy, positions InnoTV to extract maximum value whether through litigation outcomes or negotiated resolution.

VII. A BigLaw Plot Twist: Latham & Watkins on the Plaintiff’s Side

Perhaps the most striking feature of the InnoTV Labs enforcement campaign is its choice of counsel: Latham & Watkins LLP. Latham is one of the world’s largest and most prestigious law firms, with a litigation practice long identified with the defense of major technology companies against patent assertion. For years, Latham has been the firm that BigTech titans such as Amazon, Google, Meta, Netflix, Apple, Nvidia, TSMC, Texas Instruments, Netgear, and MediaTek call when they are on the receiving end of patent infringement claims, including claims brought by NPEs. The firm’s ITC practice, in particular, has historically been oriented toward respondent-side defense, helping multinational importers fend off exclusion orders and navigate the Commission’s demanding procedural requirements.

That Latham & Watkins is representing InnoTV Labs, a patent monetization entity asserting acquired LG Electronics patents against Hisense and Roku across the ITC, the Eastern District of Texas, and the Western District of Texas, is a signal that should not be lost on the patent litigation community. When a firm of Latham’s stature and institutional orientation takes the complainant’s chair in an ITC investigation on behalf of an NPE, it communicates several things simultaneously. First, it suggests that the underlying patent portfolio is strong enough to attract top-tier counsel willing to stake its reputation on the merits. Second, it signals that the economics of the case—whether through contingency arrangements, litigation funding, or other fee structures—are compelling enough to justify a major AmLaw firm’s investment. Third, and perhaps most importantly for the broader market, it demonstrates that the traditional line separating “defense firms” from “plaintiff firms” in patent litigation is dissolving. The ITC’s powerful remedies and favorable complainant win rates are attracting elite firms that historically operated exclusively on the other side of the “v.” This evolution in the legal marketplace is itself evidence of the ITC’s growing centrality to patent enforcement strategy.

The asserted patents covering display and streaming technologies developed by LG Electronics, one of the world’s leading innovators in display technology carry the credibility and technical depth of a major R&D operation. Respondents will need to contend not only with the patents’ claims but with the prosecution histories, priority dates, and technical specifications that LG’s engineering teams produced. This portfolio strength, combined with the multi-forum strategy, positions InnoTV to extract maximum value whether through litigation outcomes or negotiated resolution.

VIII. The Road Ahead: What 2026 and Beyond Hold for ITC Patent Enforcement

Several converging trends suggest that 2026 will be a watershed year for ITC patent enforcement.

First, the Lashify and Wuhan Healthgen decisions are still being absorbed by the patent bar, and their full impact on filing behavior has not yet materialized. As practitioners internalize the expanded domestic industry framework, a broader range of complainants, including companies that design domestically but manufacture abroad, small businesses, and NPEs, will recognize the ITC as a viable and attractive forum.

Second, the Trump Administration’s trade and IP enforcement agenda creates a favorable political environment. The Administration has expressed support for Section 337 as an enforcement mechanism, and its broader tariff policies—by increasing the salience of import-related disputes—may drive more patent owners to the ITC as a forum where trade remedies and IP protection intersect.

Third, the federal government shutdown in late 2025, which disrupted ITC operations for forty-three days, created pent-up filing demand that is now being released. The post-shutdown surge of twelve new complaints in a single month suggests strong latent interest in Section 337 enforcement.

Fourth, the ITC’s 2025 outcomes favored complainants: 58% of investigations reaching a final determination on the merits resulted in a finding of violation, up from 41% in 2024 and reversing a three-year trend of declining violation rates. A forum where patent owners win more often than they lose will attract more patent owners.

Fifth, life sciences companies, semiconductor manufacturers, and consumer electronics firms are increasingly recognizing the ITC as a venue for high-stakes disputes that were once litigated exclusively in district court. The Apple/Masimo case demonstrated that even the largest respondents are vulnerable to ITC exclusion orders, and that demonstration effect is powerful.

For litigation funders, the ITC represents an increasingly attractive investment opportunity. The combination of compressed timelines (fifteen to eighteen months versus three to five years in district court), powerful injunctive remedies, and favorable complainant win rates makes ITC investigations a compelling asset class within the patent enforcement portfolio. Funders can deploy capital with a shorter investment horizon and a higher probability of driving settlement outcomes that generate returns.

VIII. Practical Takeaways for Patent Owners

For patent owners considering ITC enforcement, the following strategic principles emerge from current trends:

Evaluate your portfolio for importation. Section 337 requires that the accused articles be imported into the United States. In a global economy where virtually all consumer electronics, medical devices, and industrial products are manufactured overseas, this requirement is met in the vast majority of cases. But the importation analysis must be precise: identify who imports, from where, and through what channels.

Assess domestic industry early. Post-Lashify, the range of qualifying activities has expanded dramatically, but the requirement remains. Conduct a thorough inventory of your U.S. investments—manufacturing, R&D, licensing, marketing, sales, distribution, quality control—and quantify them. For NPEs, focus on licensing program investments, U.S.-based employees, and patent prosecution and enforcement expenditures.

File simultaneously in the ITC and district court. The dual-filing strategy is not merely additive; it is multiplicative. The ITC’s speed creates early leverage, the district court preserves damages claims, and the combination forces respondents into a resource-intensive two-front defense that accelerates settlement.

Prepare for a compressed litigation schedule. ITC investigations move at breakneck speed. Complainants must be prepared to serve infringement contentions, conduct discovery, and prepare expert reports on a timeline measured in months, not years. The complaint itself must include detailed claim charts and evidence of domestic industry—a level of pre-filing preparation far exceeding district court pleading standards.

Anticipate IPR petitions and plan accordingly. Respondents will almost certainly file IPR petitions against asserted patents. The ITC will not stay its investigation, but the PTAB proceeding creates a parallel validity challenge that must be managed. Patent owners should evaluate their portfolios for IPR vulnerability before filing and consider asserting patents with strong prosecution histories and robust prior art distinctions.

Consider the public interest. The Commission evaluates whether exclusion orders serve the public interest, considering factors such as public health, competitive conditions, consumer access, and the production of like or directly competitive articles in the United States. While public interest denials are rare, they are not impossible—particularly in industries involving essential consumer products or life-saving technologies. Patent owners should affirmatively address public interest in their complaints and throughout the investigation.

Conclusion

The U.S. International Trade Commission stands at an inflection point. The Federal Circuit’s Lashify decision has expanded access to the forum, NPE filing trends are accelerating, complainant win rates are rising, and the political environment favors robust Section 337 enforcement. For patent owners willing to meet the ITC’s demanding procedural requirements and invest in the multi-forum strategies that modern enforcement demands, the ITC offers something no district court can match: the power to shut down an infringer’s access to the largest consumer market on earth.

The InnoTV Labs investigation against Hisense and Roku exemplifies this new reality. By coordinating ITC and district court proceedings, asserting a credible portfolio of LG Electronics patents, and targeting respondents whose entire U.S. business model depends on the uninterrupted importation of consumer electronics, InnoTV has constructed an enforcement architecture designed to maximize pressure at every stage. Whether this particular case results in exclusion orders, licensing agreements, or some combination of both, its strategic template will be studied and replicated by patent owners and their counsel for years to come.

The ITC is no longer a niche forum for trade disputes. It is the most powerful patent enforcement tool in the United States—and the smartest patent owners already know it.

About the Author

Erick Robinson is a partner at Cherry Johnson Siegmund James, PC, with over 25 years of experience in patent litigation. He has practiced patent enforcement across the United States, China, Germany, France, Brazil, Vietnam, and Singapore. He is recognized as one of the Leading 300 IP Strategists Worldwide by IAM. He publishes at PatentLitigation.blog, PTAB.Blog and LitigationFundingBlog.com and hosts the Litigation Funding Podcast, Patent Litigation Podcast, PTAB Podcast, and the AI Law Podcast.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. The views expressed are those of the author and do not necessarily reflect the views of Cherry Johnson Siegmund James, PC or its clients.