ITC Patent Case Reflects Tech's New Role

Covington's Shara Aranoff is quoted in this article regarding the U.S. International Trade Commission patent infringement case aimed at 17 American and European brands and retailers, the largest ever against apparel retailers and brands:

Shara L. Aranoff, a former ITC chair who is an international trade attorney at Covington & Burling LLP, said there have been about 930 section 337 cases brought before the commission over the past several decades, covering a range of products, of which fashion items are a small percentage. 

“I would say if you look at the type of goods we see [in the few fashion-related cases], they do seem to be these sort of products that have had big popularity surges or fads,” she said, pointing to a case involving acid-wash denim and another involving Crocs shoes. 

The ITC has jurisdiction over goods that “cross the border into the U.S.,” but not over goods made in the U.S., Aranoff said. If a company alleges patent infringement of a product made in the U.S. and decides to pursue a legal remedy, it must file a lawsuit in federal court. 

She said the RevoLaze case is somewhat “unusual” because all of the named respondents are importers and retailers in the U.S., “not the actual companies that are producing goods or operating the equipment that is practicing the technology covered by the patents.” 

She said that puts the 17 brands and retailers in a “somewhat difficult position.” 

“It is harder for them to argue noninfringement because it is information they don’t personally have,” she said. “They will have to rely on information coming from their contract manufacturers or whoever is making the product…it makes it harder for them to defend themselves because they have to depend on facts coming from third parties not named in the litigation that don’t have the same incentive to cooperate.”