2026 ITC Midyear Update: Section 337 Trends and a Reshaped Commission

Halfway through 2026, the U.S. International Trade Commission (ITC) is balancing an active Section 337 docket with meaningful changes in its leadership. Investigations continue to move on demanding schedules as the Commission welcomes new members and prepares for a change on its Administrative Law Judge (ALJ) bench.

DOAR’s 2026 ITC midyear analysis examines Section 337 investigation activity, procedural timing, expert deadlines, ALJ assignments, and the institutional developments likely to shape practice at the Commission through the remainder of the year.

Patent Infringement Continues to Drive Section 337 Investigations

The Commission instituted 32 investigations during the period covered by DOAR’s analysis. Patent infringement accounted for 29, or approximately 91%, of those matters. The remaining investigations involved allegations of trademark infringement, trade secret misappropriation, and unfair competition.

The concentration of patent disputes is consistent with the ITC’s continued importance as a forum for resolving complex intellectual property matters involving imported products. Although the technologies and industries at issue vary, the prevalence of patent claims reinforces the need for technical expertise and early coordination across legal, expert, and trial teams.

The data also shows that the Commission remains reluctant to resolve substantive challenges at the institution stage. Respondents submitted 10 requests to deny institution, and none were granted. Institution was postponed in 13 matters, however, with postponements ranging from 16 to 64 days and averaging approximately 39 days.

Even with those postponements, investigations moved from filing to institution in an average of approximately 33 days. That early pace carries through the remainder of the proceeding: the average initial determination date was approximately 15.5 months after filing, while target dates averaged approximately 19.6 months after filing.

ITC Expert Deadlines Require Early Strategy

The procedural schedules reviewed by DOAR underscore how quickly expert-related work begins after institution. On average, parties were required to identify their expert witnesses approximately 99 days after institution, or 133 days after the complaint was filed.

Initial expert reports followed approximately 199 days after institution, with rebuttal reports exchanged at an average of 219 days. Expert discovery concluded approximately 235 days after institution.

Fact discovery closed slightly earlier, at an average of approximately 184 days after institution. This leaves a relatively narrow period between the completion of fact discovery and the exchange of expert reports. As a result, expert selection and preparation cannot be deferred until the factual record is complete. Experts often need to be identified, engaged, and developing their analysis while discovery remains underway.

The ranges within the data also show meaningful variation among investigations. Expert identification occurred between 37 and 201 days after institution, while expert discovery closed between 128 and 323 days after institution. Although the ITC is consistently fast-moving, individual schedules can differ substantially based on the assigned judge, the complexity of the matter, and the investigation’s target date.

ALJ Assignments Remain Relatively Balanced

ALJ Cameron Elliot received the largest share of the 32 investigations analyzed, with eight assignments, or 25% of the total. ALJ Monica Bhattacharyya followed with six assignments. Chief ALJ Clark Cheney, ALJ Doris Johnson Hines, and ALJ Bryan Moore each received five, while ALJ MaryJoan McNamara received three.

The distribution reflects a relatively balanced allocation of the docket, although ALJ Elliot and ALJ Bhattacharyya collectively handled more than 40% of the investigations. Two matters were reassigned during the period, including one assigned to Chief ALJ Cheney and one assigned to ALJ Elliot.

These assignments are especially significant in light of ALJ McNamara’s planned retirement in September 2026. The Commission has opened a federal hiring process for her successor, but has not publicly identified finalists. Her departure will create an immediate need to redistribute active and newly instituted investigations unless a replacement is in place. As the Commission’s longest-serving current ALJ, Judge McNamara has handled prominent investigations involving telecommunications, consumer technology, medical devices, and other complex patent disputes.

DOAR continues to examine the procedural practices and decision-making patterns of the Commission’s judges through its ITC ALJ report series. Its most recent report analyzes

Five New ITC Commissioners Confirmed

The most significant institutional development of 2026 may be the confirmation of five new Commissioners. On July 16, the Senate confirmed Brett Doyle, David Foley Jr., Samuel Negatu, Peter-Anthony Pappas, and Bartholomew Thanhauser. Their appointments will return the ITC to a full six-member Commission for the first time in years. The incoming Commissioners bring experience spanning trade policy, intellectual property, government enforcement, and technology:

• Brett Doyle previously served as Assistant U.S. Trade Representative for Congressional Affairs, directing engagement on trade negotiations, tariff policy, legislation, and enforcement. He was sworn in on July 17 and designated Chairman on July 20 for a term as Chair expiring June 16, 2028.
• David Foley Jr. is an electrical engineer and intellectual property lawyer with experience spanning private practice, service in the ITC’s Office of Administrative Law Judges, litigation at the Department of Justice, and policy roles at the White House, USPTO, and House Judiciary Committee.
• Samuel Negatu previously served at the Office of the U.S. Trade Representative as Deputy Assistant U.S. Trade Representative for Congressional Affairs and as Assistant General Counsel. Most recently, he served as Director of Government and Regulatory Affairs at the Consumer Technology Association.
• Peter-Anthony Pappas spent more than two decades at the USPTO, beginning as a patent examiner and later serving in supervisory and policy positions. Most recently, he served as Director of Intellectual Property Policy for the Senate Judiciary Committee.
• Bartholomew Thanhauser spent more than a decade at USTR, where his work included trade negotiations, the development of World Trade Organization cases, and service as Deputy Assistant U.S. Trade Representative for Southeast Asia and the Pacific.

The table below provides an overview of the seats each incoming Commissioner will fill, their respective terms, and the continuing role of Commissioner Jason Kearns.

* Johanson, Karpel, and Kearns continued serving beyond their original term expiration dates in a holdover capacity. Kearns will remain on the Commission following this group of appointments.
** Stayin left the Commission in February 2025, before his term expired.

What a Full Commission Could Mean for Section 337 Practice

The new Commission brings substantial experience in international trade, intellectual property, government enforcement, and technology policy. Foley and Pappas, in particular, have backgrounds directly connected to patent law and IP policy, while Doyle, Negatu, and Thanhauser bring extensive experience with USTR and the broader trade enforcement system.

It would be premature to predict how individual Commissioners will approach particular Section 337 questions. Their backgrounds nevertheless suggest that intellectual property protection, domestic innovation, trade enforcement, and the Commission’s institutional efficiency may receive close attention.

A full Commission will also reduce the operational risks created by vacancies and recusals. Greater membership provides more flexibility when Commissioners cannot participate in particular matters and may reduce the likelihood that a recusal creates questions about the Commission’s ability to act. The transition will be especially important for Commission review of initial determinations, public interest analysis, and decisions involving exclusionary relief.

What to Watch at the ITC in the Second Half of 2026

The first half of 2026 reinforces several characteristics that continue to define ITC practice: patent disputes dominate the Section 337 docket, proceedings move quickly, and expert strategy must begin early.

The second half of the year will bring another layer of change. Five newly confirmed Commissioners will begin shaping Commission policy and review, a new Chairman is in place, and the ALJ bench is preparing for Judge McNamara’s departure. How those transitions affect assignments, case management, Commission review, and the treatment of complex intellectual property disputes will be among the most important developments to watch.

Contributors

Paige McKirahan

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