As the world collectively struggles to adapt to the “new normal,” it is clear that one of many challenges facing businesses and individuals is how to best adapt to supply chain disruptions. A key example of where these shortages are being reported is in the health care sector, which is experiencing a limited (or non-existent) supply of personal protective equipment (PPE) for health care workers and ventilators for patients. Not only have these shortages placed a strain on those treating patients who have fallen ill from COVID-19, but it has also frustrated efforts to fully identify who may or may not be infected. As one example, in a recent interview conducted by The Indicator podcast, it was reported that limited supplies of PPE to protect workers during patient sample collections were in turn limiting the ability of the University of Washington’s health center to test patients for coronavirus.
The U.S. International Trade Commission (ITC) regulates U.S. trade and oversees Section 337 investigations that address unfair competition based on alleged infringement of intellectual property rights. The ITC has been a popular alternative to litigation in district courts because of the relatively swift resolution it provides. (Final phases of the investigations typically occur 12 to 18 months from initiation.) However, a 2015 Federal Circuit decision has limited the ITC’s authority to regulate “articles that infringe” U.S. intellectual property rights and that are imported into the U.S. In ClearCorrect v. ITC, 2014-1527, the appeals court held that the “articles that infringe” are limited to “material things” and thus do not include “electronic transmission of digital data.”