Strategic Defense Against ITC Exclusion Orders: Post-Lashify Tactics**

1. Challenge “Significant Investment” Threshold: Argue that the complainant’s expenditures (e.g., warehousing costs) lack “substantial” contextual impact, especially for import-reliant firms.

2. Exploit the End of Chevron Deference: Post-Loper Bright, courts no longer defer to ITC’s statutory interpretations. Cite conflicting precedents to contest the ITC’s domestic industry analysis.

3. FRAND-Based Defenses for SEPs: In standard-essential patent (SEP) cases, assert:

– Equitable defenses (e.g., patent misuse, implied license) if the complainant violated FRAND obligations during negotiations.

– Public interest arguments against exclusion orders, citing risks to supply chains (e.g., medical devices as in 337-TA-1364).

💡 Pro Tip: Request ALJ hearings in non-Texas venues (e.g., DC) where FRAND defenses have higher success rates.

Chinese defendants facing ITC exclusion orders should coordinate with US agents to initiate parallel federal court actions:

– Jurisdictional Strategy: File declaratory judgment actions in manufacturer-friendly districts (e.g., Delaware or Northern California) to challenge patent validity. Cite Nokia’s SEP victory (2024) to counter ITC bias.

– Anti-Suit Injunctions (ASIs): Seek ASIs in Chinese courts (e.g., Shenzhen) to block US litigation, leveraging Huawei v. Samsung precedents. Enforce via bilateral judicial cooperation MOUs.

– Discovery Advantage: Use US agents to gather evidence under 28 U.S.C. § 1782 for ITC proceedings, targeting complainant’s non-US activities (e.g., FRAND breaches).

📌 Compliance Note: Designate agents with dual US-China bar membership to navigate CISG conflicts and evidence-sharing barriers.

Arbitration clauses can sidestep ITC jurisdiction but require precise drafting:

– Pre-Arbitration Injunctions: File in Hong Kong or Singapore courts to halt ITC proceedings, citing contractual arbitration agreements (e.g., “All IP disputes shall be resolved by HKIAC arbitration”).

– Contractual Carve-Outs: Exclude ITC-specific remedies from arbitration clauses:

“Claims related to ITC exclusion orders, cease-and-desist orders, or Customs enforcement shall be litigated in Delaware federal courts.”

– Post-ITC Damage Recovery: Use arbitration to seek compensation for lost sales if exclusion orders cause breach of supply agreements.

⚠️ Risk Alert: Avoid arbitrating SEP licensing terms—US courts often overrule arbitral awards conflicting with FTC antitrust guidelines.

🌐 Integrated Parallel Litigation Strategy

Coordinate ITC, US court, and Chinese proceedings to maximize leverage:

Forum Objective Tactical Move

ITC Delay exclusion orders File petitions for ALJ recusal if biased; demand Lashify-based domestic industry re-examination

US Federal Court Invalidate patents/secure damages Counter-sue for antitrust violations if complainant withholds FRAND licenses

Chinese Courts Block enforcement Seek preliminary injunctions against US judgments under Anti-Foreign Sanctions Law

Qianhai FTZ Courts Freeze US assets Obtain pre-judgment attachments on complainant’s China-held assets (e.g., factory equipment)

Evidence Synergy:

– Use ITC discovery (e.g., depositions) in arbitration to prove bad-faith negotiation.

– Submit Chinese market data in US courts to refute “domestic industry injury” claims.