The Growing Importance of Trade Secrets at the ITC
In March 2021, the US International Trade Commission (ITC) published the agency’s findings following its two-year investigation into SK Innovation’s unfair trade practices, concluding that it misappropriated 22 of LG Energy Solution’s trade secrets worth billions of dollars spanning the entire electric vehicle battery business. Finding a violation of Section 337 of the US Tariff Act, and the destruction of evidence by SK, the Commission imposed a 10-year-long exclusion order preventing SK Innovation’s importation of batteries, battery cells, battery modules, battery packs, and components. Ultimately, a $1.8 billion settlement was reached between the two companies as a result of the ITC exclusion order.
In December 2020, the ITC issued a Final Determination in the case based on a complaint filed by Allergan against Botox products made by Daewoong and its partner, Evolus. The ITC found that the sale and importation of the products into the United States violated Section 337 of the U.S. Tariff Act. The Commission issued a Limited Exclusion Order (LEO) prohibiting importation of the products by Daewoong and Evolus for a period of 21 months, as well as a cease and desist order against Evolus preventing the Company from selling, marketing, or promoting the products in the United States for a period of 21 months. The Commission affirmed the Final Initial Determination findings with respect to subject matter jurisdiction, standing, domestic industry as to BOTOX®, and trade secret existence and misappropriation as it relates to Medytox’s manufacturing processes.
With a weakened U.S. patent system, trade secrets continue to increase in value and the availability of injunctive relief in the form of exclusion orders makes the venue quite attractive.