Investments in ATM R&D Pay Huge Returns at the ITC

The decision in Hyosung TNS Inc. v. ITC demonstrated the importance of an investment in research and development when bringing an investigation before the ITC. The ITC requires a complainant to have a domestic industry (“DI”) over its IP-protected good or service. The controlling statute allows R&D investments related to the protected product to count for DI, but it is silent on the time period to consider. Hyosung originally argued that a multi-million-dollar investment, spent over five years before the investigation, was too far back in time to consider for the purposes of DI. The ITC, however, found that the investment was sufficiently tied to current practices that were influenced by the R&D results. On appeal, Hyosung argued for a new legal standard: investments from more than five years ago cannot count toward DI. The CAFC found “nothing in the statutory language that supports” that position and rejected Hyosung’s proposal. The CAFC dismissed Hyosung’s other arguments (1) that the asserted patent was obvious, and (2) that the other asserted (and expired) patent did not make the ITC orders over the protected products moot.