Significance of ITC Complainant’s Domestic Investment in Patented Products is Not Determined by Reference to Complainant’s Overall Domestic Investments

The ALJ denied respondents' motion for summary determination that complainants could not satisfy the economic prong of the domestic industry requirement because of their de minimis domestic investments. "The core of Respondents’ argument here is that the percentage of [complainant's] domestic investments in the patented products is too small in relation to its overall domestic investments (to say nothing of its worldwide investments) to be significant. Respondents assume that there is a level of relative investment below which it is impossible to 'credibly establish' significant investments. Respondents’ analysis fails to take proper account of the Commission’s guidance that determining satisfaction of the economic prong is a flexible exercise. . . . [I]nvestments made by a large entity may appear less significant when subjected to a strictly mathematical comparison with overall expenditures, but such investments may be deemed substantial nevertheless. . . . Respondents cite no authority for their contention that '⁠[complainants'] investments are simply too small,' and such an assertion contradicts well-established ITC precedent holding that a domestic industry is not determined by reference to absolute numbers."

LED Lighting Devices, LED Power Supplies, and Components Thereof, 337-TA-1081 (ITC July 24, 2018, Order) (Lord, ALJ)