Brooklyn Law Review


The adversarial system is lauded for determining the truth of claims, safeguarding procedural rights, and supporting the efficient direction of resources toward the most relevant and contested issues in a dispute. If a case proceeded to judgment with participation from only one party, it would raise concerns of justice, efficiency, accuracy, and the public interest. And yet, in a tribunal of steadily growing importance for intellectual property disputes—the International Trade Commission (ITC or Commission)—certain cases proceed without the benefit of participation from adverse parties. Following the default of named parties, administrative law judges determine the scope and validity of patent claims without the benefit of arguments from interested parties. The effects of these determinations are not limited to the defaulting parties, but applied widely through the in rem relief of general exclusion orders, enforced at the border to keep infringing goods out of the country. A separate form of exclusion follows in infringement determinations made by U.S. Customs and Border Protection and appeals therefrom. Those determinations proceed without participation from interested patent holders.

This article identifies and turns scholarly attention to the phenomenon of adjudicating patents absent adversaries, arguing that it is both inefficient and ineffective to construe patent claims without the guiding context of a controversy. Absent adversaries, the public interests that are reliant on robust adversarial participation in patent disputes go unrepresented. This article explores possible solutions and suggests delaying time-intensive adjudication until interested adversaries are present. It further recommends placing continuing jurisdiction with the ITC to adjudicate disputes currently decided by Customs.