UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
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`In the Matter of
`Docket No. 3854
`CERTAIN DYNAMIC RANDOM
`ACCESS MEMORY (DRAM) DEVICES,
`PRODUCTS CONTAINING THE SAME,
`AND COMPONENTS THEREOF
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`JOINT COMMENT ON THE PUBLIC INTEREST
`OF THE UNITED STATES PATENT AND TRADEMARK OFFICE
`AND THE UNITED STATES DEPARTMENT OF JUSTICE
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`The United States Patent and Trademark Office and the United States Department of
`Justice (hereinafter “Agencies”) respectfully submit these joint comments relating to the public
`interest as to Docket No. 3854.! The USPTO, as the Executive-branch agency charged with
`examining patent applications, issuing patents, and advising the President on intellectual property
`policy, has a fundamental interest in ensuring that valid patent rights receive appropriate
`protection. The Department of Justice’s Antitrust Division enforces the federal antitrust laws and
`has a strong interest in promoting competition, including by promoting a strong and effective
`patent system to spur innovation and fuel economic growth. Together, the Agencies share the
`view that the public interest favors robust, predictable enforcement of valid patent rights,
`particularly at the border, where American innovation often confronts foreign imitation.
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`L The Public Interest Aligns with Enforcement of Valid Patent Rights
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`Patents are constitutional property rights that enable inventors to commercialize their
`discoveries. For more than two centuries, reliable patent rights have fueled America’s
`technological dominance, transforming inventions ranging from Morse’s telegraph to today’s
`semiconductors, biologics, and artificial intelligence systems, into engines of prosperity. Without
`the exclusive rights that patents secure, breakthrough innovations would remain stranded in
`laboratories and workshops rather than reaching consumers through competitive markets.
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`Since America’s founding, the public interest has been viewed not as in tension with patent
`protection but instead as the core motivation for protecting inventors’ exclusive rights. As James
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`Madison noted in The Federalist No. 43, the utility of patent protection “will scarcely be
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`questioned” because the “public good fully coincides . . . with the claims of individuals” to their
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`! See 19 U.S.C. §§ 1334, 1337(b)(2); see also 19 C.F.R. § 210.8(c)(1). The Agencies take no position on the
`facts alleged in the complaint or whether Section 337 remedies should issue here.
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`inventions.? Patents represent the Founders’ solution to a fundamental challenge: how to
`incentivize costly, risky innovation while ensuring widespread public dissemination of the
`underlying scientific knowledge.
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`Supreme Court and Federal Circuit precedent affirms that one significant reason “the
`public interest . . . is dominant in the patent system”™ is because intellectual property protection
`exists “to encourage invention.”* These decisions reflect the American view that the enforcement
`of patent rights is an “issue[] of great moment to the public,”” including the public’s interest in the
`“encouragement of investment-based risk.”® As one Federal court aptly summarized more than
`six decades ago: “The enforcement of patent rights are matters concerning far more than the
`interests of the adverse parties. They are issues of great public interest.”’
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`The economic stakes of patent enforcement cannot be overstated. Intellectual property-
`intensive industries account for approximately 40% of U.S. GDP and support tens of millions of
`American jobs.® When patent rights are devalued through ineffective enforcement, the entire
`innovation ecosystem suffers. Research and development investment declines, venture capital
`becomes scarce for technology startups, manufacturing flees offshore, and America’s
`technological leadership erodes. Innovation follows investment, and investment follows
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`protection. This is why the Federal Circuit has long recognized that “the public’s general interest
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`in the judicial protection of property rights in inventive technology” against infringement
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`2 THE FEDERALIST NO. 43 (James Madison) (Clinton Rossiter ed., 1961).
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`3 Mercoid Corp. v. Mid-Continent Inv. Co., 320 U.S. 661, 665 (1944).
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`4 Eldred v. Ashcroft, 537 U.S. 186, 216 (2003) (quoting Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225,
`229 (1964)).
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`Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co., 324 U.S. 806, 815 (1945) (internal quotation marks
`and citation omitted)).
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`6 Sanofi-Synthelabo v. Apotex, Inc., 470 F.3d 1368, 1383 (Fed. Cir. 2006).
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`7 Hi-Lo TV Antenna Corp. v. Rogers, 274 F.2d 661, 665 (7th Cir. 1960) (internal quotation marks and citation
`omitted)).
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`8 ANDREW A. TOOLE ET AL., USPTO, INTELLECTUAL PROPERTY AND THE U.S. ECONOMY 1, 13 (3d ed. 2019),
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`https://www.uspto.gov/sites/default/files/documents/uspto-ip-us-economy-third-edition.pdf.
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`“outweighs any interest the public has in purchasing cheaper infringing products.”® As former
`Commissioner F. Scott Kieff similarly explains: “[F]ull enforcement of patent rights against
`practically all infringers, including even against those who make facially sympathetic claims to
`public interest carve-out, provides important incentives for patentees and their contracting parties
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`to make the expensive investments in bringing patented technologies to market.
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`II. The Public Interest Is Not Served by Transforming the Public Interest Factors into
`Enforcement Barriers
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`The U.S. International Trade Commission serves as the indispensable border guardian of
`American ingenuity. Through Section 337 of the Tariff Act of 1930, Congress declared the
`importation of articles that infringe valid U.S. patents to be unlawful and made exclusion orders
`the statutory default upon a finding of a violation.!! The statutory framework creates a
`presumption favoring exclusion orders for patent infringement.!?> Upon finding a violation, the
`USITC “shall” issue an exclusion order barring the importation of infringing articles, except where
`extraordinary circumstances—public health and welfare, competitive conditions, domestic
`production, or consumer welfare—justify withholding or tailoring relief. !?
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`The Commission’s practice faithfully reflects this statutory design. Across more than forty
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`years, the USITC has invoked public interest considerations to deny an exclusion order in only a
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`? Douglas Dynamics, LLC v. Buyers Prods. Co., 717 F.3d 1336, 1346 (Fed. Cir. 2013).
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`10 Certain Automated Teller Machines, ATM Modules, Components Thereof, & Prods. Containing the Same,
`Inv. No. 337-TA-972, Comm’n Op., 2017 WL 11198798, at *20 (USITC June 12, 2017) (dissenting views of Comm’r
`F. Scott Kieff).
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`1 19 U.S.C. § 1337(a)(1)(B), (d)(1).
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`12 An exclusion order issued by the USITC resembles an injunction issued by a district court in that each can,
`in effect, prohibit an infringer from selling infringing articles in the United States by either injunction (district court)
`or exclusion order banning the articles from importation into the United States ab initio (USITC). The presumption
`favoring exclusion orders for patent infringement in the USITC thus appears consistent with the view that injunctions
`often are an appropriate remedy in district court litigation. See, e.g., eBay Inc. v. MercExchange, L.L.C., 547 U.S.
`388, 395 (2006) (observing that, since “at least the early 19th century, courts have granted injunctive relief upon a
`finding of infringement in the vast majority of patent cases”) (Roberts, C.J., concurring); see also Statement of Interest
`of the United States of America, Radian Memory Sys. LLC v. Samsung Elecs. Co., No. 2:24-cv-1073, ECF No. 52
`(E.D. Tex., June 24, 2025).
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`13 19 U.S.C. § 1337(d)(1).
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`small number of investigations—each involving truly extraordinary circumstances related to
`public health or safety.!'*
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`Moreover, the Commission has correctly and consistently rejected “the general proposition
`that, if the infringing activity is great enough, the public interest forbids a remedy.”!> Attempts to
`weaponize the public interest factors as procedural obstacles to meritorious complaints threaten to
`undermine the USITC’s effectiveness as a forum for patent enforcement. This approach inverts
`Congress’s carefully designed statutory scheme by treating public interest considerations as
`threshold barriers rather than as narrowly tailored exceptions applicable only after findings of
`violation. The Commission should reject attempts to convert the public interest factors into
`preliminary obstacles to enforcement. In particular, the Commission should reaffirm that the
`general importance of an infringer’s company or technology is not the same as the public interest.
`Such arguments are often private commercial interests masquerading as public concerns.
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`Public interest determinations should follow—not precede—findings on infringement and
`validity. The statutory structure of Section 337 clearly contemplates this sequence: first determine
`if there is a violation, then consider whether public interest factors justify withholding the
`presumptive remedy. This sequencing makes logical sense. Because “the public is best served by
`enforcing patents that are likely valid and infringed,”!® the public interest is most accurately
`assessed only after determining the patent’s validity and whether infringement has occurred.
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`While Commission rules permit delegation of fact-finding on public interest issues under
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`appropriate circumstances,!” this procedural mechanism should not become a de facto screening
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`14 See, e.g., P. Andrew Riley & Scott A. Allen, The Public Interest Inquiry for Permanent Injunctions or
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`Exclusion Orders: Shedding the Myopic Lens, 17 VAND. J. ENT. & TECH. L. 751, 758-59 (2015).
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`15 Certain Baseband Processor Chips & Chipsets, Transmitter, & Receiver (Radio) Chips, Power Control
`Chips, & Prods. Containing Same, Including Cellular Tel. Handsets, Inv. No. 337-TA-543, 2011 WL 6121182 , at
`*77 (USITC Oct. 1, 2011).
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`16 Abbott Lab’ys v. Andrx Pharms., Inc., 452 F.3d 1331, 1348 (Fed. Cir. 2006).
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`17 See 19 C.F.R. § 210.10(b).
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`process for terminating potentially meritorious complaints before their substantive merits are
`evaluated. To do so would convert the narrow public interest exception into a gatekeeper function
`that Congress never intended and curtail constitutional First Amendment rights to petition the
`government for redress of grievances.
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`JIIR Conclusion
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`The public interest overwhelmingly favors the enforcement of valid patent rights through
`exclusion orders at the USITC. This approach honors the constitutional underpinnings of the
`patent system, follows Congress’s clear directive in Section 337, and promotes innovation and
`competition in the American economy. Strong borders for intellectual property make for a stronger
`American economy.
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`When the Commission issues exclusion orders to protect patent rights, it does not act
`against the public interest—it vindicates it. The narrow statutory exceptions for public health,
`welfare, and competitive conditions should remain just that: narrow exceptions, applied only in
`extraordinary circumstances, based only on concrete evidence, and never based on speculation or
`conjecture. The USITC should continue to resist efforts to expand these exceptions into broad
`categorical exemptions or preliminary barriers to enforcement, as such an approach would
`undermine the effectiveness of the USITC as a forum for protecting American intellectual property
`against infringing imports.
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`The Agencies urge the Commission to reaffirm the paramount public interest in enforcing
`valid patent rights, particularly through exclusion orders that block the importation of infringing
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`products.
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`Dated: November 25, 2025
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`ABIGAIL A. SLATER
`Assistant Attorney General
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`DINA KALLAY
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`MARK H. HAMER
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`CHETAN SANGHVI
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`OMEED A. ASSEFI
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`Deputy Assistant Attorneys General
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`DAVID B. LAWRENCE
`Policy Director
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`ALICE A. WANG
`Counsel to the Assistant Attorney General
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`U.S. Department of Justice, Antitrust Division
`950 Pennsylvania Ave. N.W.
`Washington, D.C. 20530
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`Respectfully submitted,
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`/s/ Austin P. Mayron
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`JOHN A. SQUIRES
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`Under Secretary of Commerce for
`Intellectual Property and Director of the
`U.S. Patent and Trademark Office
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`TODD J. TIBERI
`General Counsel
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`AUSTIN P. MAYRON
`Senior Legal Advisor
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`U.S. Patent and Trademark Office
`600 Dulany St.
`Alexandria, V.A. 22314
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