1. Determination
   Once the ALJ issues an initial determination, it is automatically adopted by the ITC as its final determination unless at least one Commissioner votes, within forty-five days, to review the determination. Id. at ' 210.42(h). See also Condensers, Parts Thereof, and Products Containing Same, Including Air Conditioners for Automobiles, ITC Inv. No. 337-TA-334 (1997) (noting that ALJ's determination of Section 337 violation became the Commission's determination by operation of ITC Rule 210.42(h)). The parties may also petition the ITC for a review of the initial determination. 19 C.F.R. ' 210.43 (1997).
2. Post- Determination Proceedings
3. Presidential Review
   A frustrating aspect of ITC practice, and one very large difference from federal court practice, is that a favorable final determination does not guarantee relief. After the ITC determines a violation of Section 337 has occurred, it is required to send its final determination to the President for review. See 19 U.S.C. ' 1337(j)(1994). The President then has 60 days to review and disapprove the ITC's determination. 19 U.S.C. ' 1337(j)(2)(1994). If the President does not specifically disapprove the ITC's determination within the 60 day period, the determination automatically becomes final the day after the 60 days have elapsed, giving the President, in effect, a veto power. See 19 U.S.C. ' 1337(j)(1994). Although the President rarely exercises this power, an ITC determination is occasionally disapproved. For example, in, Dynamic Random Access Memories, ITC Inv. No. 327-TA-242 (1996), President Reagan disapproved the limited exclusion order issued by the ITC, stating that such an order would effect more people than the respondents, and potentially disrupt trade in the computer industry. The ITC narrowed its limited exclusion order so that it covered a smaller range of products, and President Reagan let the modified order stand.
4. Bonding
   When a violation of Section 337 is found, the ITC will also seek input regarding the public interest 19 with respect to the appropriate remedy and the amount of bond that should be posted by the Respondent during the 60 day Presidential Review period. In setting the bond, the ITC considers the amount that would offset the respondent's competitive advantage from the continued unfair acts, which theoretically allows importation to continue during the review period. 19 C.F.R. ' 210.50(a)(3) (1997). For example, in Microsphere Adhesives, ITC Inv. No. 337-TA-366 (1996), the Commission set bond during the Presidential review period at 100% of the value of the patented products because it determined that a price comparison between the patented products and infringing products was not possible.
5. Appeal
   Any party is allowed to file a petition for reconsideration of a determination within 14 days of service of the determination by the Commission. 19 C.F.R. ' 210.47 (1997). Such a petition, however, can only discuss new questions raised by the determination which the party has not yet had an opportunity to argue. Id. See also Agricultural Tractors under 50 Power Take-off Horsepower, ITC Inv. No. 337-TA-380 (1997) (petition for reconsideration denied for failure to meet requirements set out in ITC Rule 210.47). Furthermore, a party that is adversely affected by an ITC final determination "may appeal such determination within 60 days after the determination becomes final, to the United States Court of Appeals for the Federal Circuit." 20 19 U.S.C. ' 1337(c)(1994).

• temporary limited exclusion orders (during the investigation and the Presidential review period);
• general exclusion orders (against any person, even non-parties);
• cease and desist orders; and
• temporary cease and desist orders.

1. Limited exclusion orders under Section 337(d)(1) are often granted in conjunction with a cease and desist order, and only apply to articles imported by parties found to be in violation of Section 337. 22 Cease and desist orders are available under Section 337(f), and direct a particular importer to refrain from engaging in the unfairly competitive acts it has been found to be committing. 19 U.S.C. ' 1337(f) (1994). While cease and desist orders are less common than limited exclusion orders, they are still granted relatively frequently by the ITC. 23 Exclusion orders and cease and desist orders stay in effect, generally, until the expiration date of the patent. See, e.g., Microsphere Adhesives, ITC Inv. No. 337-TA-366 (1996)(date of limited exclusion order extended by Uruguay Round Agreement).
2. Other Considerations
3. Jurisdiction
   ITC jurisdiction is in rem 24 and is nationwide, as opposed to the limited in personam jurisdiction of a federal district sourt. The ITC has the power to prohibit the importation of the infringing articles by any person (even a non-party) through the issuance of a general exclusion order. 25 19 U.S.C. ' 1337(d)(2) (1997). This prevents game playing in the form of switching importation of the infringing articles to another company that was not named in the investigation.
   ITC precedent indicates that it is willing to expand its jurisdiction to non-traditional methods of importation. For example, in Hardware Logic Emulation Systems, ITC Inv. No. 337-TA-383 (1997) the ALJ found that an importation of software into the United States electronically via the Internet qualified as importation into the United States under Section 337, even though the software did not pass through U.S. Customs. The ALJ that issued the determination also found that the ITC can consider contributory infringement and inducement of infringement under Section 337 as well as direct infringement, further demonstrating the ITC's willingness to consider a wide range of actions unfair importation.
4. Terminating the Investigation (ITC Rule 210.21)
   Any party may move, at any time, to terminate the investigation as to any or all of the respondents, in whole or in part. 19 C.F.R. 210.21(a) (1997). See, e.g. Asian Style Kamaboko Fish Cakes, ITC Inv. No. 337-TA-378 (1996) (initial determination granted complainant's motion to terminate the investigation with respect to certain respondents). Termination is allowed for various reasons, including on the basis of an arbitration agreement, 26 a consent order 27, or due to a settlement agreement between the parties. 28

• the ITC's ability to grant different relief such as general exclusion orders; and
• the availability of temporary exclusionary relief in a defined period of time (the ITC must make a final determination with respect to temporary relief within 90 days (or 150 days in a more complex case)).

1. Discussion of Recent Section 37 Cases in the Federal Circuit and the ITC.

   1. Recent Federal Circuit Cases regarding Section 337

...Texas Instruments, Inc. v. Cypress Semiconductor Corp., 90 F.3d 1558, 1569 (Fed. Cir. 1996) [finding that ITC determination of infringement/invalidity does not have preclusive effect in later court proceedings].
As was recognized by the Federal Circuit in Texas Instruments, Inc. v. Cypress Semiconductor Corp., 90 F.3d 1558 (Fed. Cir. 1996), Congress did not intend a determination by the ITC that a patent is infringed or invalid to have preclusive effect in later court proceedings. The Court also noted that allowing an ITC finding to have such an effect could "potentially deprive the parties of the Seventh Amendment right to a jury trial on the issue on infringement." Cypress Semiconductor, 90 F.3d at 1569, n.10. The ITC, after all, is in charge of administering the trade laws, not the patent laws. The ITC, on the other hand, is bound by a finding of infringement by a district court. EPROM, EEPROM, Flash Memory, and Flash Microcontroller Semiconductor Devices, ITC Inv. No. 337-TA-395 (1997) (Commission found patents at issue invalid due to the preclusive effect of a federal district court's finding of invalidity

to see the entire article

http://corporate.findlaw.com/intellectual-property/an-overview-of-section-337-actions-in-the-itc.html#determination