Trade Secret Litigants Should Turn to the ITC More for Relief

The International Trade Commission has become an increasingly attractive forum for trade secret litigation. The ITC has heard more trade secret cases from 2020 to 2025 than it has in the rest of its history. And since 2020, the ITC has instituted more than two dozen investigations solely involving trade secret misappropriation claims.

These statistics aren’t surprising. Because the ITC can adjudicate broader categories of trade secret misappropriation than the federal district courts, and obtaining relief is often easier and faster, more litigants are turning to the ITC for efficient adjudication of trade secret misappropriation claims.

The ITC is an Article I tribunal that possesses the unique remedy to exclude articles from import into the US upon finding a violation of Section 337 of the Tariff Act. The ITC can exclude articles that are the result of “unfair methods of competition,” such as trade secret misappropriation. Unlike complainants alleging a statutory cause of action, such as patent infringement, a trade secret complainant must show domestic industry and an “injury” component—namely, that the “threat or effect” of the misappropriation is to “destroy or substantially injure” a domestic industry.

There is no bright-line rule for determining the existence of a domestic industry under USC Section 1337(a)(1)(A). Instead, the commission considers the “nature” and “extent” of domestic activities. If a company meets these requirements, then the ITC can be a powerful venue for the enforcement of trade secret claims.

The ITC has several advantages over federal district court for trade secret complainants, notwithstanding the jurisdictional particularities. One is that the agency doesn’t require a trade secret be misappropriated in the US. The ITC can provide relief even if non-US actors misappropriated the trade secret entirely abroad if an importation or sale after importation occurs of some product accused of using the misappropriated trade secret.

For example, Chief Administrative Law Judge Clark Cheney issued an initial determination in October 2024 that Ascletis, a Chinese drug developer, misappropriated Viking’s trade secrets on medication for the treatment of metabolic disorders and liver diseases. Cheney determined that Ascletis employees, after learning of trade secrets under a non-disclosure agreement, used them in China to develop and manufacture drugs without authorization. Ascletis then imported these drugs into the US.

Cheney found that Ascletis’ misappropriation constituted injury under Section 337 because it threatened Viking’s position as the sole market entrant to use those trade secrets. The ITC thus has the power to ban the import of Ascletis’ goods even if the company only used or disclosed Viking’s trade secrets in China.

By contrast, the Defend Trade Secrets Act—the federal law that allows trade secret owners to sue in federal court for misappropriation—requires a domestic “act in furtherance of the offense” to fall within the jurisdiction of the US district courts. The bounds of this requirement are unclear.

The ITC also is an attractive venue for trade secret litigation because it hasn’t imposed any statute of limitations or time bar to bring trade secret misappropriation claims, while most federal district courts impose a strict three-year statute of limitations on such claims. To date, the ITC has never found a trade secret claim to be time-barred by any statute of limitations because there is no such statute in the Tariff Act.

Proponents argue that the lack of any statute of limitation at the ITC makes sense because remedies available under Section 337 are only prospective in nature—strictly adopting a statute of limitations could result in a loophole in Section 337 enforcement. And unlike a trade secret claim in district court, a Section 337 claim at the ITC requires importation of accused articles into the US, which might not occur until many years after the act of misappropriation.

Another benefit of ITC litigation over district court litigation is that the ITC’s in rem jurisdiction over the imported goods often eliminates personal jurisdiction concerns. In addition, the compressed procedural schedule permits quick relief—usually within 16 to 18 months—and can avoid costly and drawn-out discovery periods.

Also, unlike federal district court, where the four eBay factors must be considered for a permanent injunction to issue, the ITC is required to issue an exclusion order if a violation is found, unless the so-called public interest factors dictate otherwise. And unlike injunctions issued by district courts, which are sometimes limited to the length of time the trade secret remains secret, “[t]he duration of an order in a [Section 337] trade secret misappropriation case is set as the time it would have taken to independently develop the trade secrets.”

Finally, ITC findings in trade secret cases can have preclusive effect in district court litigation, assuming all the elements of collateral estoppel are met, making monetary damages in district court rapidly within reach after an ITC final determination.

Litigants should consider the ITC an attractive and effective forum to obtain powerful relief—especially for certain types of unfair import practices and intellectual property violations, such as trade secret misappropriation occurring entirely overseas. Due in part to its expansive jurisdiction and distinct benefits over district court litigation, we anticipate continued growth in the number of new Section 337 actions on trade secret misappropriation in the coming years.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Brian E. Mack is partner in Quinn Emanuel’s San Francisco office, focusing on complex commercial litigation and intellectual property disputes.

William Clark contributed to this article.

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