Aff

Inherency
 Existential
The International Trade Commission (ITC) lacks rules on exclusion orders for Standard
Essential Patents (SEPs).
Contreras & Rutschman '25 [Jorge L. Contreras & Ana Santos Rutschman; Professors of Law,
University of Utah S.J. Quinney College of Law & Villanova University Charles Widger School of Law;
2025; “How Should a Licensing Commitment Affect the Availability of Injunctions at the ITC?” Foley &
Lardner LLP, https://www.foley.com/insights/publications/2025/03/how-should-a-licensing-
commitment-affect-the-availability-of-injunctions-at-the-itc/, thiele + aarora]

It remains to be seen whether the USPTO, DOJ and NIST will reinstate the 20 19 P olicy S tatement in
President Trump ’s second term. The policy statement put into effect during President Trump’s first
term was withdrawn by President Biden , but in a way that did not reinstate the earlier Obama-era
policy , and the 20 22 Withdrawal does not on its face articulate any view of available remedies for
infringement of s tandard e ssential p atents that is inconsistent with the 20 19 Policy Statement.
Nevertheless, one would reasonably expect that the second Trump administration would be inclined to favor a policy where available remedies for infringement of
standard essential patents would not materially differ from the remedies available for infringement of other patents.

However, earlier this month the International Trade Commission issued a notification suggesting that the Commission ’s thoughts on this issue
may not be so predictable . On March 4, 2025, the ITC published a Notice in the Federal Register relating to Investigation No. 337-TA-1380, which
involved an allegation by Nokia that Amazon infringes certain patents declared essential to video compression standards which carry with them a commitment to
license on RAND terms. The Notice indicates that the Commission has determined to review the Initial Determination of the Administrative Law Judge in its
entirety, and it solicits written submissions from the parties on various issues, including the following SEP-specific questions:

1. When the complainant alleges that an asserted patent is a standard essential patent, subject to
reasonable, and nondiscriminatory ( RAND ) licensing terms, is the complainant precluded from seeking
an exclusion order and/or cease and desist order based on infringement of that patent? Should the Commission
consider RAND licensing obligations as a legal or equitable defense (i.e., as part of its violation determination) under section 337(c), 19 U.S.C. 1337(c)) or as part of
its consideration of the public interest factors under section 337(d)(1) and (f)(1)? Please discuss theories in law, equity, and the public interest, and identify which (if
any) of the public interest factors of 337(d)(1) and (f)(1) preclude issuance of such an order.

2. In the event a violation is found, does the information regarding the parties’ RAND obligations and
licensing attempts inform any particular public interest factor that the Commission should consider
under section 337(d)(1) and (f)(1)? If so, please identify which factor it informs and explain why, including the relevant evidence of record. As
part of its public interest analysis, should the Commission determine whether any prior license offer made by the patent holder covering the accused products is
reasonable and non-discriminatory? If so, what evidence should the Commission consider in determining whether offers are reasonable and non-discriminatory
based on the record of this investigation?

In addition, the March 4 Notice solicited written submissions from not just the parties, but also any interested government agencies or other interested parties on
the issues of remedy and the public interest, which would seemingly include addressing the above two questions and, in general, Amazon’s argument in the case
that an exclusion order would be against the public interest because it would exclude articles that practice SEPs. Such submissions were due on March 13, though
approved late submissions continue to be filed, and the target date for completion of the Investigation is currently May 14, 2025.

The questions are interesting, particularly in view of the Obama administration’s directive in 2013 that “in any future cases involving SEPs that are subject to
voluntary FRAND commitments, the Commission should be certain to (1) to examine thoroughly and carefully on its own initiative the public interest issues
presented both at the outset of its proceeding and when determining whether a particular remedy is in the public interest and (2) seek proactively to have the
parties develop a comprehensive factual record related to these issues in the proceedings before the Administrative Law Judge and during the formal remedy phase
of the investigation before the Commission, including information on the standards-essential nature of the patent at issue if contested by the patent holder and the
presence or absence of patent hold-up or reverse hold-up.”

Following that directive, the Commission has considered the issue in the past, and although it typically followed the 2013 Obama administration’s directive to
consider the issues, it virtually always found that SEPs should not receive any type of “special treatment” at the ITC. However, based
upon the
Commission’s recent Notice , it appears that the Commission may be thinking more critically about the
issue of defenses and exclusionary remedies for infringement of SEPs , with the history of these various Policy Statements showing that
there is not a singular policy view, both from administrations with different perspectives and from parties with divergent interests. And with the target date for
completion of the Nokia/Amazon Investigation just two months away and with comments having just recently been submitted, we may soon learn how the ITC
intends to treat the Obama-era directive in the context of current trade policy.
 Cases Now
ITC cases are surging now.
Vinson & Elkins ‘3-12 [Eric Joseph Klein; Vinson & Elkins’ Head of Intellectual Property & Technology
Litigation, Erik C. Shallman; Patent and Trade Secret Litigation Lawyer, Briana R. Falcon; Domestic and
International Trademark Lawyer, Mike Schiller; Complex Commercial Litigation; March 12, 2025; Vinson
& Elkins LLP,VE Intellectual Property Update, “Section 337 Gets a Makeover: Federal Circuit Expands
Domestic Industry Criteria,” https://www.velaw.com/insights/section-337-gets-a-makeover-federal-
circuit-expands-economic-domestic-industry-criteria/, aarora]

Pre-Lashify, establishing the economic prong of the domestic industry requirement proved challenging for
companies without substantial manufacturing operations in the U.S., regardless of whether they were otherwise heavily
invested in U.S.-based operations. Lashify’s broader view of what counts as “employment of labor or capital”
will likely expand the universe of complainants with domestic industries qualifying them for ITC
investigations , thus expanding access to this increasingly popular alternative to traditional litigation and
opening the door for more companies to seek relief through the ITC, even if they do not have
substantial manufacturing operations in the U.S. And while this decision concerned a patent investigation, the ITC
also covers products covered by copyrights, trademarks , and mask works—it remains to be seen
whether this decision may thus expand ITC access for intellectual property holders on the whole . V&E is
well-versed in the ITC litigation and continues to assist clients in their intellectual property litigation strategies before district
courts, the United States Patent and Trademark Office, and the ITC, and will closely monitor how the ITC complements this
decision and consider its impact on corporate intellectual property strategies.
 Amazon
Amazon delays it.
Gallop '4/1 [Joe, Writer for ChannelNews, "Nokia and Amazon Settle Global Streaming Patent
Dispute"; March 28, 2025; ChannelNews, https://www.channelnews.com.au/nokia-and-amazon-settle-
global-streaming-patent-dispute/, thiele + aarora]

Amazon then accused Nokia of misusing its standard-essential patents (SEPs) by seeking to block the sale of
products rather than offering fair and reasonable licensing terms . The legal battle intensified when Amazon
filed a countersuit in the US, alleging that Nokia had infringed its cloud computing patents. During the litigation process, Nokia
secured significant victories in courts across Germany and the US. In February, the Düsseldorf Regional Court ruled in Nokia’s
favour, determining that Amazon’s Prime Video service violated a Nokia patent related to multimedia service provisioning. This
resulted in an injunction against Amazon in Germany. Additionally, in December 2024, the US ITC found four of Nokia’s video-related patents
to be valid and infringed by Amazon. The commission recommended an exclusion order , potentially barring the importation of
Amazon’s infringing products into the US. The settlement displays Nokia’s bold stance in defending its intellectual property rights.
The company has previously taken similar legal action against other tech giants, including HP and Lenovo, as part of its broader strategy to
monetise its vast patent portfolio. To date, Nokia claims to have developed nearly 5,000 inventions enabling multimedia products and services,
investing over €150 billion (A$259 billion) in research and development since 2000. For Amazon, the resolution ensures the continued
availability of its Prime Video and streaming devices without the threat of legal roadblocks. The company has been expanding its video
streaming business, making it a key competitor in the global streaming market.
 May Ruling
ITC rules on the plan in May.
Mueller ’24 [Florian; intellectual property activist, consultant for Microsoft, writer for FOSSPatents
blog; March 31; “In Nokia v. Amazon, USITC Raises Fundamental Questions About FRAND and Licensors’
Reliance on U.S. Licensees’ Manufacturing Abroad” ipFray, https://ipfray.com/in-nokia-v-amazon-usitc-
raises-fundamental-questions-about-frand-and-licensors-reliance-on-u-s-licensees-manufacturing-
abroad/#publicinterest, thiele + aarora]
(F)RAND standard. The “F” makes no difference; RAND used to be the more common term in the U.S., where FRAND is now also
widely understood. For a long time, (F) RAND was considered part of the ITC’s public-interst analysis . But both
Amazon and Lenovo want it to be considered as both a general defense and, as a fallback, as a public-
interest issue. Yesterday’s review notice raises rather general questions about how and in what context
to adjudicate (F)RAND: 5. When the complainant alleges that an asserted patent is a standard essential
patent, subject to reasonable, and non-discriminatory (RAND) licensing terms, is the complainant
precluded from seeking an exclusion order and/or cease and desist order based on infringement of that
patent? Should the Commission consider RAND licensing obligations as a legal or equitable defense (i.e.,
as part of its violation determination) under section 337(c), 19 U.S.C. 1337(c)) or as part of its consideration of the public
interest factors under section 337 (d)(1) and (f)(1)? Please discuss theories in law, equity, and the public interest, and
identify which (if any) of the public interest factors of 337(d)(1) and (f)(1) preclude issuance of such an order. 5. In the event a
violation is found, does the information regarding the parties’ RAND obligations and licensing attempts inform any particular
public interest factor that the Commission should consider under section 337(d)(1) and (f)(1)? If so, please identify which factor
it informs and explain why, including the relevant evidence of record. As part of its public interest analysis, should the
Commission determine whether any prior license offer made by the patent holder covering the accused products is reasonable
and non-discriminatory? If so, what evidence should the Commission consider in determining whether offers are reasonable
and non-discriminatory based on the record of this investigation
Thumpers
 Nokia vs. Amazon XO
ITC issues exclusion orders often.
Mueller ’25 [Florian; intellectual property activist, consultant for Microsoft, writer for FOSSPatents
blog; January 30; “Nokia may win even two U.S. import bans against Amazon: preliminary ITC ruling”
ipFray, https://ipfray.com/nokia-may-win-even-two-u-s-import-bans-against-amazon-preliminary-itc-
ruling/, thiele + aarora]

Context: Most standard-essential patent (SEP) license deals are struck without litigation. The latest example became
known earlier today: Nokia ’s agreement with Transsion (January 30, 2025 ip fray article). One of the
exceptions if Nokia’s multimedia patent enforcement against Amazon . Last month, an Administrative
Law Judge ( ALJ ) of the United States International Trade Commission (USITC, or just ITC ) sided with
Nokia over four of five patents-in-suit and recommended a U.S. import ban against Amazon streaming
devices (December 21, 2024 ip fray article). The preliminary ruling, called final initial determination
( FID ), holds Amazon responsible for its unlicensed status (January 9, 2025 ip fray article).What’s new: A
different judge, ALJ Doris Johnson Hines, yesterday handed Nokia another preliminary ITC win over
Amazon. In investigation no. 337-TA-1379, two patents are still in play, and Amazon was held to infringe U.S. Patent No.
7,532,808 (“Method for coding motion in a video sequence”). She also deems the patent valid (despite an
investigation having been instituted by the Patent Trial and Appeal Board (PTAB) of the United States
Patent and Trademark Office (USPTO)) and recommends a limited exclusion order (i.e., U.S. import
ban).
Trade Adv
 U---Independent Now
The ITC is the independent arbiter of U.S. trade.
Bown '16 [Chad P. Bown, Senior Fellow, Peterson Institute for International Economics; 2016; “The
WTO and Antidumping in Developing Countries” Peterson Institute for International Economics,
https://www.piie.com/publications/chapters_preview/56/11ie1664.pdf, thiele + aarora]

Second, the US government often compartmentalizes responsibility. The Treasury and State
Departments used to be jointly responsible for US trade policy. They still retain some indirect
involvement. The Commerce Department and the US Trade Representative, with some emerging
independence by the International Trade Commission, now share control with Congress of most US
trade law and policy. The Justice Department and the FTC are responsible for federal competition law
and policy. The intersection of US trade and antitrust law and policy, both in the executive branch and
Congress, is almost nonexistent.
 U---/ITC Unbiased
The ITC is fair and unbiased.
Lawrence '94 [M. A. Lawrence; legal scholar, Case Western Reserve University School of Law; 1994;
“Bias in the International Trade Administration: The Need for Impartial Decisionmakers in United States
Antidumping Proceedings” Case Western Reserve Journal of International Law, Vol. 26, Issue 1, pp. 1-22,
https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1580&context=jil, thiele + aarora]

The ITC, on the other hand, with its quasi-judicial procedure and greater independence from the political
branches of government, is less susceptible to political pressure than the ITA in rendering its antidumping
injury determinations. As stated in a paper presented at the 1992 Judicial Conference of the U.S. Court of International
Trade: If such determinations were made by an Executive Branch decisionmaker , decisions about
whether an industry was injured by reason of imports would be in danger of being perceived as
decisions on whether the Executive regarded a specific industry as worthy of protection. The
Commission scheme isolates injury determination from this perception of political considerations.
Because the great majority of the complaints of bias involve the ITA and not the ITC, this article asserts
that the proceedings currently in place at the ITC do an adequate job of providing an impartial tribunal
in antidumping disputes, and accordingly limits its reform proposal to the proceedings at the ITA.
 U---ITC Most Independent Agency
The ITC is the most independent agency.
Foster ’16 [F. David; trade policy expert, co-author with Will E. Leonard, U.S. International Trade
Commission; 2016; “The U.S. International Trade Commission: Its Role in U.S. Trade Policy” A Centennial
History of the United States International Trade Commission,
https://www.usitc.gov/publications/other/centennial_book/chapter5.pdf, thiele + aarora]
The evolution of the USITC Chairmanship provides an interesting example of the challenge of finding appropriate balance
among competing factors: dealing with substantive vs. administrative matters; preserving the agency’s independence
from the executive and legislative branches, while being responsive to both; and maintaining a relatively strong hand
as the Chairman while working collaboratively with the other Commissioners. Policy-makers have intentionally
structured the USITC and its Chairmanship to make it one of the most—if not the most—”independent”
of all U.S. independent agencies. Among other things, Congress provided that Commissioners serve for nine-
year terms without the opportunity to be reappointed. As a result of this relatively lengthy tenure, a
Commissioner need not consider whether his voting record pleases the President who appointed him.
Further, since the Chairmanship is only a two-year term , the ability of any Chairman to consolidate
administrative power is reduced —albeit at the cost of losing continuity and efficiency each time a new Chairman must
come up to speed on the agency’s ongoing and complex administrative challenges. By rotating the Chairmanship
between the two parties , regardless of the party of the President, a designation as Chairman is less
susceptible to being used as a political prize to reward politically loyal Commissioners. With an even six ,
rather than an odd number of Commissioners, there is no edge given to the Commissioners who are of
the same party as the President. Finally, and perhaps most importantly, Congress did not delegate substantive
policymaking authority to the Commission. Unlike other agency heads, the Chairman of the USITC is 361 For example,
one individual served as Chief of Staff or its equivalent for Chairmen Don Newquist and Lynn Bragg, after having served as an
aide to Chairmen Catherine Bedell and Alfred Eckes. Chapter 5: Evolution of the Chairmanship of the U.S. International Trade
Commission Page | 158not expected to make policy changes— nor is capable of doing so. The statute
allows Commissioners to vote individually on substantive issues based on their own interpretations and
application of the law to the facts on record, yet also provides incentives for the Chairman and
Commissioners to work together in administering the affairs of the Commission.
 U---Vetoes
Presidential veto hurts ITC credibility
Brenner et al. '23 [Samuel Brenner, Partner; Steven Pepe, Partner; Kevin Post, Partner at Ropes &
Gray LLP; 27 October 2023; “United States: SEPs and FRAND – litigation, policy and latest developments”
IAM Media, www.iam-media.com/hub/sepfrand-hub/2023/article/united-states-seps-and-frand-
litigation-policy-and-latest-developments, thiele + aarora]

SEP policies in the United States continue to evolve, with successive policy statements from federal
agencies providing somewhat inconsistent guidance on whether and when SEP owners should obtain
injunctive relief against prospective licensees. This comes amid a global push by SEP owners to find
forums that are willing to provide such relief. Evolving SEP policies in the United States In 2019 the
Trump Administration issued a policy statement asserting that broad relief for patent owners – including
injunctive relief and exclusion orders from the ITC – should be “equally available” for SEP owners. This
replaced a 2013 Obama Administration policy statement that discouraged injunctive relief and ITC
exclusion orders for SEPs, arguing that such remedies may be “inconsistent with the public interest”. In
2022 the Biden Administration withdrew the 2019 policy statement. However, it did not reinstate the
2013 policy statement, nor did it adopt a draft one that would have counselled against SEP litigation
injunctions in most cases – except where the implementer is unwilling or unable to enter a licence on
FRAND terms (which is roughly in line with the 2013 policy statement). During this time, US courts have
rejected rules for and against injunctive relief for SEP owners. Instead, applying the Supreme Court’s
2007 decision in eBay, courts have been reluctant to grant injunctive relief to any patent owners, except
in rare cases. SEP-related investigations at the ITC Despite injunction-related uncertainty in US
litigation, SEPs remain a crucial part of an increasingly interconnected and interoperable landscape of
devices that rely on various standards (eg, cellular, WiFi and video coding). In this context, the ITC has
proven attractive for high-profile SEP owners seeking relief. Although the total number of new ITC
complaints was down in 2023 – in conjunction with fewer US patent cases overall – this may be a blip;
several recent high-profile cases indicate that it remains an attractive forum for SEP owners. SEP-related
investigations at the ITC are not new, of course. For example, in 2012 Motorola asserted several SEPs
against Microsoft, but terminated the investigation in early 2013 following a settlement with the FTC
(337-TA-752). Later that year, in an investigation requested by Samsung against Apple, the ITC issued an
exclusion order against Apple devices found to infringe a Samsung patent that was declared essential to
3G cellular standards (337-TA-794). The ITC concluded that Samsung’s promise to license its SEPs on
FRAND terms did not preclude an exclusion order. However, the Obama Administration exercised a rare
veto in the presidential review stage, finding that the exclusion order would be inconsistent with public
policy – applying the now withdrawn 2013 policy statement. Since then, SEPs have played a key role in
several investigations. For example, in 2022, in an investigation requested by Philips against Thales, FTC
chair Lina Khan and commissioner Rebecca Slaughter submitted a comment stating that they were
increasingly concerned about SEP owners using the ITC “for the purpose of gaining leverage over
existing or potential licensees” (337-TA-1240). Ultimately, the ITC declined to issue an exclusion order,
agreeing with the administrative law judges’ findings of non-infringement and invalidity, but it took no
position on whether the SEPs were unenforceable for failure to disclose them to ETSI in a timely
manner. Similar results occurred in investigations requested by Netlist (337-TA-1089) and INVT (337-TA-
1138). In an investigation requested by Ericsson against Apple, the parties placed significant emphasis
on SEP issues, but the administrative law judge noted that these arguments should be limited to the
public interest phase (337-TA-1299). A settlement in 2023 terminated the investigation before any
decision was rendered relating to these issues. Currently, multiple pending investigations involve high-
profile SEP owners and prospective licensees, so the ITC may address these issues again: Bell Northern
Research v NXP et al on WiFi standards (337-TA-1367); Ericsson v Motorola and Ericsson v Lenovo on
cellular 5G standards (337-TA-1375, -1376); Nokia v Amazon and Nokia v HP on the H264 standard (337-
TA-1379, -1380); Ericsson v Lenovo on the HEVC and H265 standards (337-TA-1387); and Motorola v
Ericsson on cellular 5G standards (337-TA-1388). Notably, all of these pending investigations are paired
with other related litigation, whether in US district courts or in other jurisdictions (eg, courts in Europe,
India and Latin America) where injunctive relief may be easier to obtain as part of a broader global
litigation strategy being employed by SEP owners. Strategic role of the ITC in SEP litigation These recent
developments suggest that the ITC may be a particularly attractive venue for SEP owners as part of their
litigation strategies going forward. US district courts are often reluctant to issue injunctions in patent
cases – especially in SEP cases where meeting the eBay test may be more difficult – but in contrast,
injunctive relief in the form of an exclusion order is the only remedy available at the ITC. Therefore, the
ITC can be an effective tool for obtaining such relief that might otherwise be tough to obtain in the
United States, which is often one of the largest markets for litigants. However, respondents at the ITC
should still be prepared to point to public interest concerns based on SEP owners’ FRAND commitments,
as well as other defences. So far, the ITC has generally been reluctant to treat SEPs differently from
other patents, but it has acknowledged that SEP/FRAND issues may be relevant to public interest. The
ITC is empowered to address all legal and equitable defences, so while it cannot address breach-of-
contract counterclaims (any of which must be removed to federal court), it is well equipped to consider
any relevant FRAND-related defences. Discovery at the ITC is also fast-paced and expensive. The
expansive discovery and short timelines of ITC investigations can be utilised by both sides, including to
address SEP-specific issues. Further, SEP cases tend to lend themselves to extensive third-party
discovery, such as for component manufacturers selling the part with the accused functionality to the
respondent. Looking ahead Going forward, unless the ITC reaches a result in one of these pending cases
that gives SEP owners pause about whether exclusionary relief would be granted should they prevail on
the merits (or if there is another presidential veto as in the Apple/Samsung case), the ITC is likely to
remain part of a broader global strategy for SEP holders to put injunction pressure on prospective
licensees – although these also continue to have the tools to push back.
 L---WTO Rules -> Independence
Breaking WTO rules hurts ITC independence.
Leibowitz '01 [Lewis E. Leibowitz, Partner, Hogan & Hartson, specializing in international trade law
and regulation; 2001; “Safety Valve or Flash Point? The Worsening Conflict between U.S. Trade Laws and
WTO Rules” Cato Institute Trade Briefing Paper No. 17,
https://www.kita.net/biz/trade_import/upfiles/foreign5.pdf, thiele + aarora]

The “administrative protectionism” of the U.S.

trade remedy laws has long been defended as a “ safety valve ”
for protectionist pressure that serves to strengthen the U.S. commitment to the multilateral trading system. With
an increasing number of rulings against current U.S. laws and practices, however, the “safety valve” defense of trade remedy
laws cannot be sustained. The old pose that indulging ian trade remedy protectionism and claiming leadership of the
multilateral trading system are mutually supportive will no longer wash. U.S. policymakers now face a choice between
defending U.S. trade laws in their current form and defending the U.S. commitment to the WTO. While this choice is politically
difficult, it must be faced and faced soon. If the U nited S tates is going to continue its postwar role of leadership
within the world trading system, it will be necessary to rethink laws that are bringing the country into
incessant and worsening conflict with its WTO obligations. The United States cannot maintain its
leadership role if it is widely perceived to be flout ing WTO rules , and it cannot urge other countries to
live up to commitments that it does not honor itself. In light of the enormous national interest in a strong and
vibrant international trading order, it is vitally important that policymakers make the right choice—and make it
before the damage done is irreparable.
 L---SEP Decisions -> Independence
SEP decisions are the lynchpin of ITC independence.
Kieff '16 [Hon. F. Scott Kieff, Commissioner, U.S. International Trade Commission; 2016; "Pragmatism,
Perspectives, and Trade: AD/CVD, Patents, and Antitrust as Mostly Private Law," Harvard Journal of Law
& Technology, https://jolt.law.harvard.edu/assets/digestImages/5-Kieff_Round-5-Complete.pdf, thiele +
aarora]

The first key shift moving from left to right across Figure 1 is an increase in independence from politics and fashion. A
crucial inflection point can be highlighted by beginning the discussion with the one agency in Figure 1 (just right of the middle of
the figure) that is likely least familiar to most readers: the ITC. Rising from the shadow of the Civil War’s violent political
divisions, when the country was funded almost entirely by import tariffs rather than the modern income
tax, the essential structure of the ITC traces its intellectual roots to the famous Harvard economics professor Frank W.
Taussig, who was appointed the first Chair of the ITC’s predecessor (the Tariff Commission). After having long advocated for
an independent commission to de-politicize the import component of U.S. international trade, Taussig
oversaw the creation of an agency structured to do only fact-finding, analysis, adjudication, and
technical advising, leaving policy-making to the political branches of government. The ITC’s structure
meaningfully insulates it from ordinary public choice pressures that act on the political branches of
government. The ITC is somewhat like the many other more familiar independent administrative agencies, such as the FTC
and Securities and Exchange Commission (“SEC”). Each is often seen as less subject to political pressure than
typical Executive Branch departments and agencies, such as the DoJ and the USPTO, because each of
these independent commissions is not within any executive branch department. But unlike almost all of
the other independent commissions, there are several essential features of the ITC’s internal structure
that statutorily enable significantly greater independence , most of which date back to the statute advocated by
Taussig at the time the ITC’s predecessor was set up: Six members , appointed by the President and confirmed by the
Senate, with no more than three from any one political party. Nine-year staggered terms for each
member. The position of Chair rotates among the members every two years, switching party every time.
Each member has the same vote on substantive matters. Any four members can overrule the Chair on
administrative matters. Analytical studies assigned by and technical assistance provided to both political
branches, including both houses of Congress. As a result of these structural features, the Commission Staff generally
work closely with all six of the Commissioners’ offices, recognizing that every two years the Chair will have to rotate
and that many of the Commissioners are likely to serve as Chair. This incentivizes close coordination
among the six members and the Commission Staff even when votes are not unanimous, which has long
helped the ITC ordinarily operate by consensus on internal administrative matters as well as frequently
on substantive decisions. It also forces a constructive confrontation of disparate perspectives, thereby
increasing the chance that alternative viewpoints are thoroughly considered. This helps ensure the best
record is assembled and that resulting published work product, including those for the majority as well as
minority dissents and concurrences, is written with moderation as well as careful explanation and citation to the law and factual
record. This all, in turn, strengthens
external confidence in the agency’s expertise and independence among
reviewing courts as well as both elected branches of government, including both houses of Congress,
across the political spectrum. The second key shift moving from left to right across Figure 1 is an increase in the
complexity of the basic topics in a patent-antitrust dispute that are actually decided by each agency.
For the USPTO, this includes only the basic requirements for a valid patent, often collectively called
validity.For the DoJ and the FTC, this includes only antitrust issues. But for the ITC and the courts, this
includes all aspects of patent disputes, including topics relating to validity, infringement, remedy , and
public interest , including antitrust or potential anti-competitive effects. The simultaneous presence of
all four sets of topics harnesses each side of a typical dispute with its own strong incentive to use self-
restraint in presenting less hyperbolic arguments to the governmental decision-makers. For example, while the patentee has
the selfish incentive when arguing about infringement and remedy to argue that the patent claims are broad (thereby
sweeping in more infringements), it has the countervailing selfish incentive when arguing about validity and antitrust to assert
that the patent claims are narrow (thereby avoiding the prior art and avoiding excessive market power). At the same time, the
opposing party has the exact opposite set of mutually countervailing incentives. As a result, each side engages in self-restraint,
providing the tribunal with a much more elaborate and thoughtfully presented ( less hyperbolic) set of
evidence and arguments. The combined impact of the two key shifts sketched in Figure 1 increases the chance that the
government decision-makers in the tribunals towards the right side of that figure have the benefit of a more diverse set of
ideas, arguments, and facts, as well as their own internal incentives to more completely and transparently elaborate the
analytical reasoning that underlies their decisions. Of course, thoughtful and independent decision-making also
occurs within the agencies towards the left side of the figure, which are more political and focus on only
a subset of the same issues. But special vigilance is needed in those settings to adopt and adhere to
additional procedural safeguards that are structured to provide added assurance of independence and
effectiveness. Of course, the ITC itself is a work in progress. As needs have shifted in its IP-antitrust docket to
include increasing controversy over public interest issues (including potential anticompetitive effects)
arising out of cases involving standard-essential patents (“ SEPs ”), the ITC has explored a range of
procedures for increasing transparency, fairness , and a range of substantive economic frameworks. For
example, in the Broadcom v. Qualcomm “baseband processors” case, the ITC voted to conduct a public
hearing on the public interest factors relating to possible harm to competition if an e x clusion o rder
were awarded. Similarly, in the Samsung v. Apple “smartphone wars” case, the ITC made supplemental
solicitations for input about public interest to address, among other things, concerns about
anticompetitive effects of patents in the context of technological Standard Setting Organizations
(“ SSOs ”) and putative commitments to issue licenses on so-called RAND or FRAND terms. More recently, in
the Amkor v. Carsem “encapsulated integrated circuits” case involving the SSO called “JEDEC,” four of the six Commissioners
provided additional views exploring various procedural safeguards akin to waiver and estoppel to maximize
fairness and
the ways specific conduct of both the IP owner and the IP user can give rise to symmetrical concerns
about holdup and reverse holdup . Similar symmetrical concern for such procedural and substantive nuances is
elaborated in the European Court of Justice’s (“ECJ”) Huawei v. ZTE decision, which may suggest the emergence of an
international norm. A striking parallel has thereby emerged in the co-evolved approaches employed by the ITC as a U.S.-based
organization and the ECJ as an E.U.-based organization. Further transparency and opportunity for increased clarification of
diverse complex arguments may be available at the ITC if parties request oral argument before the Commission and one of the
Commissioners votes to grant it, whether such an oral argument is focused on issues relating to SEPs or any other topic for
which the analytical and decision-making processes would be aided by open conversations between the parties and the
Commission and among the Commissioners in compliance with the Sunshine Act.Conclusion: Using some concrete
examples from the fields of AD/CVD law, patent law, and antitrust law, this article highlights the mostly
private law attributes of these fields and sketches mechanisms by which these private law attributes
contribute to trade law’s overall success. It also elucidates some core structural features of a tribunal that can
meaningfully reinforce these private law aims while also constructively accommodating public law values. The article shows
how private law approaches to trade can facilitate a field’s ability to constructively engage both rules and
standards while mitigating the efficiency-eroding and fairness-eroding effects of public choice and
strengthening the opportunity for democratic review .

ITC independence is key to trade.

Institute for Government '17 [Jill Rutter, Director of Strategy and Relationships, and Joe Owen,
Programme Director, Institute for Government; May 16, 2017; "Implementing Brexit: Immigration,"
Institute for Government Report,
https://www.instituteforgovernment.org.uk/sites/default/files/publications/
IFGJ5448_Brexit_report_160517_WEB_v2.pdf, thiele + aarora]

The Government should set up an independent analytical body for trade Two of our case study countries – Australia and the
USA – have benefited from independent government organisations dedicated to providing impartial analysis on trade policy options (Box 2).
BOX 2: INDEPENDENT GOVERNMENT ORGANISATIONS Australia: Productivity Commission13 The Commission is an independent advisory body
that provides analysis on economic performance, long-term prosperity and living standards to the Australian government. The Commission was
established in 1998, but can trace its roots to the Tariff Board of the 1920s. Its scope has broadened considerably, and in addition to trade it
now covers employment, education, productivity and social policy.14 The Commission has a budget of AU$31m, the vast majority of which
(AU$24m) is used to employ 163 members of staff, many of them economists.15 While the Government can request research from the
Commission, it has no influence over the findings and conclusions that the Commission reaches. Moreover, by statutory requirement, the
Commission has to subject its work, advice and processes to public scrutiny, as well as take a broad approach to its research, limiting influence
by special interest groups. There is no The tools we need 17 formal requirement for the Government to act on the basis of the Commission’s
recommendations. The Productivity Commission produces guidance on policy and regulatory issues covering all sectors of the economy and
different levels and areas of government, including international trade. Recent reports have covered bilateral and regional trade agreements,
On many of these topics, the Commission’s
developments in anti-dumping arrangements and service exports.16
independence has allowed it to air findings that would have been too sensitive for ministers. In February
2016, the Commission argued that Australia’s politically sensitive trade defence policies (which protect
Australian industries from ‘unfair’ practices abroad) ‘are making Australia, on a national welfare basis,
worse off’.17 USA: United States International Trade Commission (USITC) The USITC is an independent
federal agency that conducts independent economic analysis in the areas of tariffs, international trade
and US competitiveness, including official assessments of the economic effects of US trade agreements.
It supports trade policymakers in the executive branch and Congress via research, briefings and
testimony at congressional hearings. The USITC was established by Congress in 1916, and since then has
had its responsibilities protected on a statutory basis via a number of legislative acts. In 2016, it had a
budget of US$91m.18 In addition to its research responsibilities, the USITC also maintains the
Harmonized Tariff Schedule of the United States and acts as a quasi-judicial body, investigating and
adjudicating matters such as intellectual property rights infringements as well as administering the trade
remedy laws of the USA. Often, USITC staff are seconded to the USTR for long-term detailed
assignments, or serve as technical advisers to the USTR’s Trade Policy Staff Committee. The UK should
establish an equivalent, independent body to advise on trade. The use of such an organisation provides
a number of advantages to Australia and the USA, as follows. It provides dedicated resources for a
function that otherwise gets squeezed The need to run trade negotiations places a heavy demand on
trade directorates, meaning that often their analytical function is squeezed. One chief negotiator
described how this resulted in the department’s analytical function relying on an informal relationship
with outside experts: The whole branch was focused on supporting or conducting negotiations. What I
had to do, eventually, was outsource the policy function to the academic community. I established a
kind of informal trade policy network of the people still working on trade policy issues in the academic
world… it was just that we were overworked on the negotiating side. 18 TAKING BACK CONTROL OF
TRADE POLICY Creating a dedicated analytical body at arm’s-length from DIT could minimise the risk
that this analytical work is overlooked. Conversely, an independent body could prevent too much trade analysis: there is a risk that all of the
various departments involved in trade could commission their own, potentially conflicting, analysis to support their own purposes. For example, during the Trans-
Pacific Partnership negotiations, Japan’s agriculture ministry published its own alternative impact assessment to the trade department, which directly contradicted
the trade department’s analysis. Having a single arbiter of truth in Whitehall could prevent this type of conflict. It makes it easier for government to take on
entrenched interests In the politics of trade, liberalisation is opposed by less competitive domestic industries which benefit from protection .
These
industries often form powerful, entrenched interests, and UK policymakers have been insulated from
these pressures while trade policy has been run from Brussels. Government will find it easier to
challenge these entrenched interests using analysis that has the credibility of independence. As one
interviewee observed of Australia’s Productivity Commission: That sort of institutional arrangement is
very important and does help. It doesn't guarantee, but it does keep the department focused on the net
benefit to the community as a whole, rather than individual interest lobbies. So it is an important body
to have. This type of neutral arbiter also could prevent individual departments from becoming clients for
their sectors. A recent Institute for Government report19 found that the use of an equivalent
independent analytical body in another area of policy – the Committee on Climate Change – had served
exactly this function. Its independence and analytical capacity enabled it to develop a politically
uncontested evidence base for policymaking. In part, this was possible because of the Committee’s
narrow remit, which kept it out of more explicitly political issues. This experience suggests that the UK’s
independent trade body should mirror the narrow remit of America’s USITC, rather than the broader
remit of Australia’s Productivity Commission. Independent analysis maintains long-term focus In the
same report on long-term policymaking,20 the Institute found that independent advisory bodies were
an effective way of fostering policy continuity between different governments. Often, the most effective
trade strategies are those with long time horizons. Independent advisory bodies create a stable and
enduring body of analysis which, to some extent, combats the cycle of reinvention that is common in
government policymaking. Their independence from government also means that they are separated
from normal personnel churn in Whitehall, allowing them to develop lasting expertise.

ITC independence is crucial to trade operations.

Williamson '16 [Chairman, U.S. International Trade Commission; 2016; “Centennial Transcript: U.S.
International Trade Commission’s Centennial Celebration” U.S. International Trade Commission,
https://www.usitc.gov/documents/centennial_transcript_0.pdf, thiele + aarora]

I want to start off with this question. A key theme in the Centennial Book, as of course there's been a lot
of talk today, is the mandate for the Commission to be independent and nonpartisan and objective. And
I want to ask this question: Is this mandate still as relevant in 2016 as it was in 1916? And will it continue
to be relevant going forward? And if you think yes, why? So I throw that open to the panelists.

MR. FOSTER: Yes, I think it is still relevant, and it will continue to be relevant. Again, I think part of the
reason of—well, originally the Commission was set up to take politics out of the tariff. That was the
phrase that was used. And of course, it was not successful in doing that, but what it did establish is an
agency that developed some extreme expertise in international trade, and became the go-to agency in
many ways for both the Congress and now the President in terms of trying to get objective, nonpartisan,
exceptionally expert advice that really lays the foundation for the support for the entire Trade
Agreements Program. And you will not get that support if the agency becomes perceived as being not
objective or partisan. And so I can't stress, in my own view, the Commission is central to the entire Trade
Agreements Program, because it is the agency that becomes the safety valve for many of the issues. And
Congress and the President can say, well, we gave that question to the Commission and here's what
they say. And it's the same way that the tax committees in Congress use the Joint Tax Committee, and
other agencies—other committees of the sort. It is an agency that people can trust and can cite, and it
won't be possible if they're not perceived as objective and nonpartisan.

CHAIRMAN WILLIAMSON: Dan?

MR. LEAHY: Mr. Chairman, I would just say that I think being seen as objective and independent is really
helpful when talking to appropriators. I mean, they get suspicious if they think you're leaning too much
one way or the other. So I found it helpful to go into those sessions being able to say, quite honestly,
yes, we do some work for USTR. The statute says we ought to. We're doing a lot more work right now
for Finance and Ways and Means, da-da-da-da, and you're emphasizing the balance in our approach
between the Hill and the Administration I think is helpful to the Commission's long-term survival.

CHAIRMAN WILLIAMSON: Lynn?

MS. BRAGG: I really feel that it's more important than ever before, given the hard swings in partisanship
that we're seeing on Capitol Hill. And I think that's very—you've seen the results of that, basically. And I
look at it now from a manufacturing and a business perspective. Nothing gets done. And I think more
and more both the business communities and manufacturing communities are looking for objective
information, and information on which they can make very key business decisions.
 IL---ITC Stops Trade War
ITC key to stop trade war.
USITC '25 [United States International Trade Commission; 2025; “USITC Publication 0000” United
States International Trade Commission, https://www.usitc.gov/publications/other/pub0000.pdf, thiele +
aarora]
Once the Commission came into existence, it became the logical agency to conduct all sorts of
information-gathering and investigative activities. From time to time Congress has altered the Commission's charter
and shifted its focus from one area to another, but throughout its 60-year history, the Commission has served as the Nation's
major source of information about international trade. Although the agency has occasionally been faulted for partisanship or a
lack of objectivity in its rulings, it has remained in existence because it fulfills a continuing need in the Federal Government .
Whether its reports and advice were used in the. revision of general tariff acts or in the negotiation of
trade agreements, the Commission's staff and experience have proved useful to the Nation. At the same
time, the Commission failed to take the tariff out of politics, as many of its early advocates had hoped it would. Politics and
tariffs have been intimately related throughout U.S. history. International trade policy in the United States has always been a
compromise that has never fully satisfied the advocates of either higher or lower rates . As the Commission has
exercised its responsibilities in recommending adjustments in this compromise, it has become the target of
criticism from both liberal and conservative spokesmen. When the Commission rules in favor of offering relief to domestic
producers, the free traders protest; when it dismisses a relief case, the protectionists object. If taking the tariff out of
politics is impossible, as it seems to be, then perhaps the U.S. International Trade Commission is a good
place to deal with the politics of the tariff because, by its very structure, the Commission attempts to be
neutral and bipartisan . Possibly, it provides a sort of safety valve and court of last resort for all who are
materially affected by tariff policies. 132 Chairman Taussig, however, probably best summed up the Commission's role
in the development and administration of U.S. trade policy when he said: "The Tariff Commission is created primarily for
investigation, and yet it is permanent.
 IL---SEP Violations -> Trade War
SEP violation due to unclear domestic policy causes trade war.
Albrecht ‘1-16 [Brian, Economist at UMinnesota, “The Politicization of IP Protection: The Case of
Standard Essential Patents - International Center for Law & Economics.” International Center for Law &
Economics, 16 Jan. 2025, laweconcenter.org/resources/the-politicization-of-ip-protection-the-case-of-
standard-essential-patents/.,thiele + aarora]
The Politicization of IP Protection: The Case of Standard Essential Patents Giuseppe Colangelo December 6, 2024 SSRN View Original Source
Abstract Standard essential patents (SEPs) exemplify the tension between the dual nature of intellectual property, which is both
national and international. While standards have a global dimension, patents confer territorial rights, making
the implementation of standards geographically constrained. As technical standards are a strategic tool ,
countries have developed national standards strategies that prioritize securing technological
leadership. Unsurprisingly, SEPs have become a geopolitical issue and a significant factor in
international tensions. In this context, China’s growing role in international standardization has further
politicized the process of standard-setting. This paper argues, however, that the approaches taken by
EU and US courts and policymakers regarding SEPs have inadvertently aided China in effectively
implementing its strategy. The paper identifies the root of the problem in the uncertainty surrounding
the economic and legal interpretation of fair, reasonable, and non-discriminatory ( FRAND) licensing
terms, as well as in the willingness of national courts to act as global licensing tribunals. Additionally, the paper investigates whether the
ongoing strategies of the U.S. and the EU align with their stated goal of achieving technological leadership. I. Introduction National courts
worldwide are increasingly resolving patent disputes in ways that carry significant global implications. In effect, these local courts are
interpreting their national patent laws in ways that influence how companies operate internationally. This is evident, for instance, in the
handling of standard essential patents ( SEPs) disputes, where national courts are increasingly willing to set royalty rates that apply on a
global scale. This “glocal” interpretation of patent law has created a fragmented global intellectual property (IP) landscape marked by
contradictions. Although it is often cited as a prime example of globalization, it is simultaneously influenced by economic nationalist concerns
about domestic industries and local economic development.1 Such a dual nature has historically characterized the evolution of IP regimes and
the pendulum swings back and forth over the years. Indeed, while it can be argued that IP protection has roots in economic nationalist motives,
the international IP system has consistently expanded in territorial and regulatory scope over the last century. Nonetheless, at the same time,
the more IP rights play a key role in the global economy, being essential in promoting international trade, the more their
nationalist origins seem to resurface.2 The case of SEPs is a prominent example of this tension. Indeed, standards are seemingly one of the
most important yet fragile pillars of the modern tech economy. On the one side, as the growing interconnectedness of an
increasing volume and diversity of things requires interoperability, technical standards are set to reinforce their role by enhancing network
value, facilitating marketintegration , and creating a single global market. The development of the mobile
communications industry clearly illustrates this globalization trend.3 Specifically, the shift from the first
generation of national standards to the second generation of regional standards aimed at fostering the
European single market, and finally to global partnerships created to develop 3G, 4G, and 5G, reflects
the increasing demand for a supranational standard. On the other side, despite the global dimension of
standards, patents grant territorial rights, making the deployment of standards territorial as well. As a
result, both the filing and litigation of SEPs are matters of strategic decision-making, as countries may
differ significantly in their approach to patent protection. Furthermore, the global reach of technology
markets inevitably leads to transnational litigation over SEPs. Indeed, since SEPs are included in global
portfolios and the related products are sold in multiple markets, legal action for perceived infringements
may need to be taken in several jurisdictions. Moreover, with the rise of the Internet of Things (IoT) and
the evolution of many industries depending on advanced mobile telecommunication standards, the
latter are crucial to both national economies and security.4 As a result, countries have deployed national standards
strategies prioritizing efforts to secure a technological leadership, in particular for critical and emerging technologies (CET), namely for
advanced technologies carrying strategic significance for competitiveness and national security.5 In addition, countries may have strong
interests in preventing their companies’ SEPs from being adjudicated in foreign jurisdictions because of the risks of national measures that may
adversely affect their protection and enforcement.6 As
technical standards represent a strategic tool for technological
competition among countries, it is no surprise that they have become a matter of geopolitics and a
significant factor in potential tensions in international relationships.7 Therefore, once again, the
dilemma arising from the dual dimension (i.e., national and global) of patent protection comes to the
forefront. While the pivotal role of standards nurtures the nationalist nature of patents, local regulatory
solutions cannot ignore the intrinsic interdependency among economies in a highly interconnected
global environment. Further, they must consider the potential countermeasures adopted by other countries to favor domestic firms,
leading to a global race to the bottom. Against this background, the paper traces the roots of the problem to the uncertainty surrounding the
SEP protection. Interventions that affect the reliable enforcement of SEPs impact their value and the incentives to innovate, which are essential
for supporting a country’s technological leadership. Therefore, by analyzing relevant policy documents, legislative initiatives, and case law, this
paper aims to investigate the ongoing strategies undertaken by the U.S. and EU to assess whether they are consistent with the purported goal
of pursuing technological leadership. Notably, the paper argues that, although China’s growing role in international standardization has indeed
contributed to the politicization of standard-setting, it is not the sole cause. The underlying issues stem from ongoing debates about the
interpretation of fair, reasonable, and non-discriminatory (FRAND) commitments, the role of national courts in setting royalties for global
patent portfolios, and the issuance of anti-suit injunctions (ASIs). Together with China’s approach to standardization, policy decisions by
Western countries have influenced the valuation of SEPs and created substantial opportunities for forum shopping. The paper is structured as
follows. Section 2 investigates the roots of the current
geopolitical battle over SEPs. Section 3 outlines the recent
standardization strategies of the U.S. and EU and analyzes whether their policy goals of pursuing
technological leadership align with their approaches to the legal implications of FRAND commitments,
particularly concerning the limited ability of FRAND-encumbered SEP holders to fully monetize their
innovations through injunctions. Section 4 concludes. II. Setting the SEPs Global Chessboard: The Problem and Its Roots Since they
are fundamentally a form of self-regulation, technical standards are not inherently subjects of geopolitical rivalry. However, their political
relevance has increased alongside their growing strategic role in modern economies. As a result, technical standard-setting, once primarily the
domain of cooperation and competition among private actors, has become a central arena for rivalry among countries.8 The turning
point in this recent trend is often attributed to China’s new approach to standardization. While traditional Western leaders typically follow a
model characterized by market leadership with government support, China has adopted a distinct strategy by actively pursuing state-driven
standards as a key element of its national policies.9 While China’s growing influence in international standardization has certainly contributed
to the politicization of standard-setting, this paper argues that it is not the sole explanation for the phenomenon. The roots of the issue lie in
longstanding controversies over the meaning of FRAND commitments and the role of national courts in determining royalties for global patent
portfolios. These factors have ultimately affected the value of SEPs and created significant opportunities for forum shopping. Therefore, before
illustrating the Chinese strategy, this Section examines the approaches emerged in Western countries regarding licensing rules for standard-
setting participation, the possibility to set global royalty rates, and the availability of ASIs. A. The Content of FRAND Commitments A significant
part of the geopolitical conflicts reflects the apparent failure of the main rules designed to manage the relationship between patent holders and
implementers. In particular, the current situation seems to be a natural consequence of the flawed process for determining
FRAND terms. The standardization process is successful as long as it benefits all participants. Specifically, patent owners must receive fair
compensation for their research efforts and implementers must have access to the best technological solutions under terms that enable them
to profitably commercialize products incorporating those standards. However, while much of the policy debate has centered on reducing the
leverage of patent holders in negotiations with implementers—allowing the latter to profitably commercialize products incorporating
standardized technology—the equally important condition of ensuring proper compensation for patent holders has received far less attention
from scholars and policymakers.
 !---ITC Limits Trump Tariffs
ITC checks Trump---they’ll block tariffs.
Trump ‘3-26 [Donald, President of the United States of America, “Adjusting Imports of Automobiles
and Autombile Parts into the United States.” The White House, 26 Mar. 2025,
www.whitehouse.gov/presidential-actions/2025/03/adjusting-imports-of-automobiles-and-autombile-
parts-into-the-united-states/., thiele + aarora]

NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States of America, by the authority vested in me by the Constitution
and the laws of the United States of America, including section 301 of title 3, United States Code; section 604 of the Trade Act of 1974, as
amended; and section 232 of the Trade Expansion Act of 1962, as amended, do hereby proclaim as follows: (1) Except as otherwise
provided in this proclamation, all imports of articles specified in Annex I to this proclamation or in any subsequent annex to this proclamation,
as set out in a subsequent notice in the Federal Register, shall be subject to a 25 percent tariff with respect to goods entered for consumption
or withdrawn from warehouse for consumption, on or after 12:01 a.m. eastern daylight time on April 3, 2025, for automobiles, and on the date
specified in the Federal Register for automobile parts, but no later than May 3, 2025, and shall continue in effect, unless such actions are
expressly reduced, modified, or terminated. The above ad valorem tariff is in addition to any other duties, fees, exactions, and charges
applicable to such imported automobiles and certain automobile parts articles. (2) For automobiles that qualify for preferential tariff treatment
under the USMCA, importers of such automobiles may submit documentation to the Secretary identifying the amount of U.S. content in each
model imported into the United States. “U.S. content” refers to the value of the automobile attributable to parts wholly obtained, produced
entirely, or substantially transformed in the United States. Thereafter, the Secretary may approve imports of such automobiles to be eligible to
apply the ad valorem tariff of 25 percent in clause (1) of this proclamation exclusively to the value of the non-U.S. content of the automobile.
The non-U.S. content of the automobile shall be calculated by subtracting the value of the U.S. content in an automobile from the total value of
the automobile. (3) If U.S. Customs and Border Protection (CBP) determines that the declared value of non-U.S. content of an automobile, as
described in clause (2) of this proclamation, is inaccurate due to an overstatement of U.S. content, the 25 percent tariff shall apply to the full
value of the automobile, regardless of the actual U.S. content of the automobile. In addition, the 25 percent tariff shall be applied retroactively
(from April 3, 2025, to the date of the inaccurate overstatement) and prospectively (from the date of the inaccurate overstatement to the date
the importer corrects the overstatement, as verified by CBP) to the full value of all automobiles of the same model imported by the same
importer. This clause does not apply to or otherwise affect any other applicable fees or penalties. (4) The ad valorem tariff of 25 percent
described in clause (1) of this proclamation shall not apply to automobile parts that qualify for preferential treatment under the USMCA until
such time that the Secretary, in consultation with CBP, establishes a process to apply the tariff exclusively to the value of the non-U.S. content
of such automobile parts and publishes notice in the Federal Register. (5) For avoidance of doubt, clause (4) of this proclamation does not apply
to automobile knock-down kits or parts compilations. Clause (4) of this proclamation applies only to individual automobile parts as defined by
Annex I to this proclamation that otherwise meet the requirements of clause (4) of this proclamation. (6) The Secretary, in consultation with the
United States International Trade Commission and CBP, shall determine the modifications necessary to the HTSUS to effectuate this

proclamation and shall make such modifications to the HTSUS through notice in the Federal Register. (7) Within 90 days of the date of this
proclamation, the Secretary shall establish a process for including additional automobile parts articles within the scope of the tariffs
described in clause (1) of this proclamation. In addition to inclusions made by the Secretary, this process shall provide for including
additional automobile parts articles at the request of a domestic producer of an automobile or automobile parts article, or an industry
association representing one or more such producers, where the request establishes that imports of additional automobile parts articles
have increased in a manner that threatens to impair the national security or otherwise undermines the objectives set forth in any
proclamation issued on the basis of the Secretary’s February 17, 2019, report or any additional information submitted to the President
under clause (3) of Proclamation 9888 or clause (9) of this proclamation. When the Secretary receives such a request from a domestic
producer or industry association, the Secretary , after consultation with the United States International Trade Commission and
CBP, shall issue a determination regarding whether to include the articles within 60 days of receiving the request. Any
additional automobile parts articles that the Secretary has determined to be included within the scope of the tariffs described in clause
(1) of this proclamation shall be so included on or after 12:01 a.m. eastern daylight time the day after a notice in the Federal Register
describing the determination of the Secretary. The notice in the Federal Register shall be made as soon as practicable but no later than
14 days after the Secretary’s determination. (8) Any automobile or automobile part, except those eligible for admission under “domestic
status” as defined in 19 CFR 146.43, that is subject to the duty imposed by this proclamation and that is admitted into a United States
foreign trade zone on or after the effective date of this proclamation, in accordance with clause (1) of this proclamation, must be
admitted as “privileged foreign status” as defined in 19 CFR 146.41, and will be subject upon entry for consumption to any ad valorem
rates of duty related to the classification under the applicable HTSUS subheading. (9) The Secretary shall continue to monitor imports of
automobiles and automobile parts. The Secretary also shall, from time to time, in consultation with any senior executive branch officials
the Secretary deems appropriate, review the status of such imports with respect to national security. The Secretary shall inform the
President of any circumstances that, in the Secretary’s opinion, might indicate the need for further action by the President under
section 232. The Secretary shall also inform the President of any circumstance that, in the Secretary’s opinion, might indicate that the
increase in duty rate provided for in this proclamation is no longer necessary. (10) No drawback shall be available with respect to
the duties imposed pursuant to this proclamation. (11) The Secretary may issue regulations and guidance consistent with this
proclamation, including to address operational necessity. (12) CBP may take any necessary or appropriate measures to administer the
tariffs imposed by this proclamation. (13) Any provision of previous proclamations and Executive Orders that is inconsistent with the
actions taken in this proclamation is superseded to the extent of such inconsistency. IN WITNESS WHEREOF, I have hereunto set my hand
this twenty-sixth day of March, in the year of our Lord two thousand twenty-five, and of the Independence of the United States of
America the two hundred and forty-ninth.
 !---Court Strikes Tariffs
Court strikes down tariffs
McDaniel ’25 [Christine, Researcher at Yuetter Institute, “Understanding Trump’s New Tariffs: Legal,
Economic and Agricultural Perspectives | Yeutter Institute | Nebraska.” Unl.edu, 2025, yeutter-
institute.unl.edu/understanding-trumps-new-tariffs/, thiele + aarora]

IEEPA empowers the President to “regulate … any … importation … of … any property in which any
foreign country or a national thereof has any interest by any person … subject to the jurisdiction of the
United States.” This is the first time that IEEPA has been used for tariffs. (However, President Nixon
used the Trading With the Enemy Act (TWEA), a statute that IEEPA in part sought to limit and replace, to
impose across the board tariffs in 1971 when the U.S. declared it would abandon the gold standard for
the U.S. dollar). The use of IEEPA to impose tariffs for the first time is quite significant because other
statutes delegating the power to the President to impose tariffs for national security reasons or to
address unfair foreign trade practices have more procedural requirements and indeed require an
investigation that takes time. Under IEEPA, tariffs can be imposed virtually immediately with no
investigation required in advance. More traditional trade remedy statutes such as Sec. 301 and Sec. 232
that were revitalized and used by the Trump Administration during President Trump’s first term operate
differently. Section 301, meant to address unfair and unreasonable foreign trade practices, and Section
232, that addresses imports threatening to impair U.S. national security, require lengthy investigations
prior to taking tariff actions. If the IEEPA-based tariffs are imposed, it is likely that there will be legal
challenges brought in U.S. courts. U.S. courts have traditionally given very wide latitude to Presidential
actions under IEEPA and any such challengers will face an uphill climb, even with new Supreme Court
jurisprudence giving less latitude to executive branch actions based on congressional delegations of
power. President Nixon’s TWEA tariffs survived a court challenge in the early 1970s with the court
finding the power to “regulate” included power to tariff, although critics point out IEEPA’s long list of
delegated powers does not include explicitly the power to “tariff” or “tax,” and no prior President used
IEEPA for imposing tariffs. China has filed a World Trade Organization (WTO) dispute settlement case
against the United States based on the IEEPA tariffs. However, ever since the WTO Appellate Body
collapsed in December 2019, the United States has maintained the ability to appeal any first-level WTO
panel report “into the void,” thereby preventing its adoption by the WTO dispute settlement body and
thus preventing the ruling from becoming binding. A USMCA challenge by Canada and Mexico if the
tariffs are imposed later is likely too. Importantly, both the WTO agreements and the USMCA contain so-
called national security or “essential security” exceptions, and the USMCA exception is less qualified
than the WTO exception. The USMCA’s “essential security” exception appears to be completely self-
judging and does not contain some of the limiting language that one finds in WTO agreements’ national
security exceptions. The U.S. believes even the WTO national security exception is entirely self-judging,
even though WTO panels have found some small, outer bound limits. The wording of the USMCA’s
“essential security” exception indicates even more strongly that the exception is entirely self-judging:
“Nothing in this Agreement shall be construed to … preclude a Party from applying measures that it
considers necessary for … the protection of its own essential security interests.” On social media,
President Trump also cited trade deficits with the three countries as a reason for imposing tariffs: “…The
USA has major deficits with Canada, Mexico, and China (and almost all countries!), owes 36 Trillion
Dollars, and we’re not going to be the “Stupid Country” any longer. MAKE YOUR PRODUCT IN THE USA
AND THERE ARE NO TARIFFS!” Most economists believe any focus on bilateral trade deficits, and
certainly with Canada and Mexico, makes little sense given the economic integration between the three
countries that makes North American goods globally competitive.
Standards Adv
 XO -> Innovation
https://edis.usitc.gov/external/attachment/846335-2347382.pdf (XO = innovation)
AT: Off-Case
CP
 AT: SCOTUS CP
ITC doesn’t listen to SCOTUS.
Jonas ’22 [Charlie; Senior Managing Editor, Volume 24, Tulane Journal of Technology and Intellectual
Property, J.D. Candidate 2022, Tulane University Law School; 2022; “NPE Power Reversal: Amending ITC
Standing Under Section 337 and Domestic Industry” Tulane Journal of Technology and Intellectual
Property, Volume 24, pages 223-237, https://journals.tulane.edu/TIP/article/view/3736/3507, thiele +
aarora]

Unlike the federal courts, the ITC does not require a “showing of irreparable harm … to obtain” an
exclusion order.25 The Commission will grant this remedy to complainants after it finds infringement.26
Since NPEs use exclusion orders as a primary instrument of exploitation against respondents,
“companies and commentators [over the years] have expressed concerns that the ITC could become a
haven for nonpracticing entities.”27 Especially in instances where “legal independence continually
causes disruption within the patent system, . . . [and] the Supreme Court makes changes to U.S. patent
law . . . that do not apply at the ITC.”28 Until the parallel system addresses this legal independence, the
ITC will remain favorable.29
 AT: Executive CP
The counterplan is illegal and violates ITC independence.
Dunlap ’14 [Amanda; legal scholar, University of Georgia School of Law, Editor-in-Chief of the Georgia
Journal of International and Comparative Law; 2014; “International Trade Law and Policy: The Evolution
of International Dispute Settlement” Georgia Journal of International and Comparative Law, Vol. 42,
Issue 3, pp. 559-588, https://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?
referer=&httpsredir=1&article=2059&context=gjicl, University of Georgia, thiele + aarora]

Further complicating the question of jurisdiction over the regulation of international trade is the distinct
authority of the Congress under article I, section 8, of the Constitution to regulate foreign commerce,
and the general constitutional powers of the President to conduct foreign relations. Where foreign
commerce ends and foreign relations begin is often not easy to discern. The Commission is an independent agency
created by the Congress, to which Congress has delegated some of its constitutional authority to
regulate foreign commerce. Headed by six commissioners, no more than three of which can be from the
same political party,5 the Commission enjoys unique independence from the Executive , a status
fostered by the Congress' belief that the Commission should be bipartisan.' To enhance this
independence the Congress enacted new legislation to allow the Commission to represent itself in the
courts,7 and to enable the Commission to go directly to the Congress for funding and oversight, rather
than through the office of the Bureau of the Budget (now the Office of Management and Budget) .8 2 See generally
Sherman Act, 15 U.S.C. §§ 1-7 (1970), and Clayton Act, 15 U.S.C. §§ 8-11 (1970). 3 Antidumping Act of 1921, 19 U.S.C. §§ 160-
170 (1970 and Supp. V 1975) and countervailing duty legislation, 19 U.S.C. § 1303 (Supp. V 1975). Federal Trade Commission
Act, 15 U.S.C. §§ 41-58 (1970). Act of Sept. 8, 1916, ch. 463, § 700, 39 Stat. 795. SENATE COM. ON FNAN CE, TRADE REFORM Acr
OF 1974, S. REP. No. 1298, 93d Cong., 2d Sess. 115 reprinted in [1974] U.S. CODE CONG. & AD. NEWS 7186, 7259. (hereinafter
The Finance
cited as FINANCE COMM. REPORT). 19 U.S.C. § 1333(c) (Supp. V 1975). 19 U.S.C. § 2232 (Supp. V 1975).
Committee Report states: The Committee strongly believes that the only way to preserve the strict
independence of the Commission from unwarranted interference or influence by the Executive Branch
is to place its budget directly under the control of Congress. Consequently, section 175 of the bill would
more specifically identify the Commission as an agency independent from the Executive departments,
would provide that the budget of the Commission shall not be subject to revision by the President
under the Budget and Accounting Act, 1921, but rather shall be included by the President in the Budget
without revision. Further, any necessary apportionment or reapportionment of appropriations required by section 3679 of
the Revised Statutes (31 U.S.C. 665) would not be subject to the control of the Director of the Bureau of (Vol. 8:27 ROLE OF ITC
By keeping in mind the rather
unique , independent character of the Commission and by examining the
pertinent law, legislative history, and Commission practice, one may gain a better feeling for the
authority of the Commission to regulate "unfair methods of competition and unfair acts" in
international trade in a better feeling for the authority of the Commission to regulate "unfair methods of
competition and unfair acts" in international trade.
 AT: Process---Independence Deficit
ITC independence is key to effectivity. Trade Act of 1974 proves.
Foster ’16 [F. David; trade policy expert, co-author with Will E. Leonard, U.S. International Trade
Commission; 2016; “The U.S. International Trade Commission: Its Role in U.S. Trade Policy” A Centennial
History of the United States International Trade Commission,
https://www.usitc.gov/publications/other/centennial_book/chapter5.pdf, thiele + aarora]

To rectify these perceived problems, the Trade Act of 1974 expanded the term of Commissioners to
nine years and provided that a Commissioner who had served for more than five years could not be
reappointed. The 1974 Act also rescinded the President’s power to appoint the Chairman and Vice
Chairman. Instead, the most senior Commissioner with at least 18 months left in his/her term would
serve automatically as Chairman for 18 months, while the most senior Commissioner of the other
political party with at least 36 months remaining in his/her term would serve as Vice Chairman. Thus,
under the Act, the Chairmanship would rotate automatically between the parties every 18 months.
According to the Senate report on the Act: This amendment is intended to strengthen the independence
of the Commission by removing the power to appoint the chairman and vice chairman of the
Commission from the President. Also, it would provide, in the normal course of events, that the
chairman and vice chairman of the Commission are the two most senior in service among Commission
members. It is hoped that this may provide an incentive to commissioners to serve their entire terms
and avoid vacancies, as well as provide that the most experienced members of the Commission serve as
chairman and vice chairman, which is generally desirable. The 1974 Act also aimed to incentivize
Commissioner participation in votes by making their voting records public. Finally, to further support
the agency’s independence, the 1974 Act authorized the Commission to be represented in all judicial
proceedings by its own attorneys and for the Commission’s budgets to be submitted to Congress
without revision by OMB.326 Although Congress adopted these reforms in an attempt to provide the
Commission with a structure that would motivate the Commissioners to address matters before the
agency in a timely and independent manner, it treated administrative matters differently from the
substantive work of the Commission.
 AT: Executive Power CP---Independence Deficit
Presidential overreach in the ITC decks independence and effectivity. Trade Act of
1974 proves.
Foster ’16 [F. David; trade policy expert, co-author with Will E. Leonard, U.S. International Trade
Commission; 2016; “The U.S. International Trade Commission: Its Role in U.S. Trade Policy” A Centennial
History of the United States International Trade Commission,
https://www.usitc.gov/publications/other/centennial_book/chapter5.pdf, thiele + aarora]

To rectify these perceived problems, the Trade Act of 1974 expanded the term of Commissioners to nine
years and provided that a Commissioner who had served for more than 318 Ibid., § 330(b). 319 Ibid., § 330(c). 320 The
Commission’s Chairman and Vice Chairman at the time were both designated by the President (and the President at the time was a Republican while both Houses of
Congress were controlled by the Democrats). 321 Senate Finance Committee, Report of the Committee on Finance, S. Rep. No. 93-1298 (November 26, 1974), 115.
322 Ibid. Chapter 5: Evolution of the Chairmanship of the U.S. International Trade Commission Page | 150 five years could not be reappointed.323 The 1974 Act also
rescinded the President’s power to appoint the Chairman and Vice Chairman. Instead, the most senior Commissioner with at least 18 months left in his/her term
would serve automatically as Chairman for 18 months, while the most senior Commissioner of the other political party with at least 36 months remaining in his/her
term would serve as Vice Chairman. Thus, under the Act, the Chairmanship would rotate automatically between the parties every 18 months. 324
According
to the Senate report on the Act: This amendment is intended to strengthen the independence of the
Commission by removing the power to appoint the chairman and vice chairman of the Commission
from the President.
 AT: Politicize CP---Congressional Rollback Deficit
The counterplan is illegal and gets rolled back by Congress.
Foster ’16 [F. David; trade policy expert, co-author with Will E. Leonard, U.S. International Trade
Commission; 2016; “The U.S. International Trade Commission: Its Role in U.S. Trade Policy” A Centennial
History of the United States International Trade Commission,
https://www.usitc.gov/publications/other/centennial_book/chapter5.pdf, thiele + aarora]

Congress viewed the actions of Presidents Reagan and Bush as an effort by the executive branch to
politicize the Commission: Congress [has] struggled for years to find a workable administrative
structure for the ITC which would not compromise the agency’s mission as both an independent source
of knowledgeable trade advice to the Congress and the executive branch and as an independent arbiter
of trade cases. The solution found in 1977 ensured that no single political party or individual could
exercise undue influence over the commission on substantive issues.
 AT: Secrecy/OMB/AG CP
The plan without OMB revision and including public voting is key to independence.
Foster ’16 [F. David; trade policy expert, co-author with Will E. Leonard, U.S. International Trade
Commission; 2016; “The U.S. International Trade Commission: Its Role in U.S. Trade Policy” A Centennial
History of the United States International Trade Commission,
https://www.usitc.gov/publications/other/centennial_book/chapter5.pdf, thiele + aarora]

The 1974 Act also aimed to incentivize Commissioner participation in votes by making their voting
records public. Finally, to further support the agency’s independence, the 1974 Act authorized the
Commission to be represented in all judicial proceedings by its own attorneys and for the Commission’s
budgets to be submitted to Congress without revision by OMB.
 AT: Chairman CP
Chairmen are inefficient and cause delay.
Foster ’16 [F. David; trade policy expert, co-author with Will E. Leonard, U.S. International Trade
Commission; 2016; “The U.S. International Trade Commission: Its Role in U.S. Trade Policy” A Centennial
History of the United States International Trade Commission,
https://www.usitc.gov/publications/other/centennial_book/chapter5.pdf, thiele + aarora]

To assess how these dual roles of the Chairman work in practice, the authors consulted a number of
former Chairmen, Chiefs of Staff, and long-time Senior Executive Service (SES) managers, as well as
contributing their own recollections. The responses of these individuals generally reflected three
themes: a) The USITC is unique among federal independent agencies in that the Chairman’s views on
substantive matters seldom, if ever, carry special weight with the other Commissioners; b) To be
effective, an USITC Chairman needs to balance his or her statutory authority to make administrative
decisions with a commitment to assure collegial decision-making whenever possible; and c) As
government-wide administrative requirements multiply in areas like fiscal accountability and
cybersecurity, Chairmen struggle to find a balance in managing administrative matters efficiently, so as
to provide sufficient supervision and guidance to career staff charged with implementing decisions
without micromanaging those staff.
 AT: Antitrust/DOJ CP
The counterplan gets vetoed by the President---empirics.
Reilly ’17 [Christina, Psychology Scholar, “Section 337 and the New Trump Administration: Your Top Ten
Questions Answered | Foley & Lardner LLP.” Foley & Lardner LLP, 3 May 2017,
www.foley.com/insights/publications/2017/05/section-337-and-the-new-trump-administration-your/.]

First, with respect to the price-fixing claim, the ITC has previously issued only one exclusion order based
on an antitrust violation. That was in 1978, and was one of only four times the president has vetoed the
ITC and vacated the exclusion order during the presidential review period. While Section 337 expressly
provides for ITC jurisdiction over unfair acts that “restrain or monopolize trade or commerce in the
United States,”2 this section has rarely been invoked in Section 337 complaints, perhaps because price-
fixing claims are commonly brought by purchasers complaining of high prices, not by competitors
complaining of low prices.
DA
 AT: Big Tech/Lobby DA
Non-unique. Big tech has been hating the ITC.
Carbonneau ’24 [Louis; intellectual property expert, founder & CEO of Tangible IP, writer for
Inventors Digest; September 1; “‘Shameless’ War on ITC” Inventors Digest,
https://inventorsdigest.com/ip-market-shameless-war-on-itc/, aarora]

This creates leverage for patent owners that they have lost since the 2006 decision in eBay v.
MercExchange did away with injunctions. We also saw this in the Massimo v. Apple saga a few months
ago.

Well, Big Tech is now lobbying Congress aggressively to curb the ITC power, based on the specious
arguments that 1) it is wreaking havoc in its manufacturing operations (which it can’t if the goods are

not imported), and 2) that it is duplicative of the district court system (we just explained that it is not).

A public hearing at the House IP sub-committee on July 23 put this latest attempt on full display.

Big Tech’s complaints were so egregious that U.S. Rep. Thomas Massie (R-Kentucky), who is sympathetic
to the small inventors’ plight, lost his temper during the hearing: “I’m appalled that you guys are here

testifying like this. This is shameless … what you’re saying is if you’re only stealing 10 percent of the
product, let us keep importing it, let us just keep stealing it.”

Even if the impact of the ITC can be major in some cases (Apple , after much screaming and lobbying the
White House , simply disabled a subpar feature in its Apple watch to satisfy the exclusion order ), two

wrongs do not make a right. Weakening the ITC’s power would make the United States even more
irrelevant when it comes to patent enforcement.

AT: Big Tech DA - LENOVO plays both sides

https://edis.usitc.gov/external/attachment/846597-2348714.pdf
The Final Initial Determination ... Lenovo US’s assertion here. (SKIP EXERCPT)
 AT: UPC DA
The UPC is failing.
Witness '2/14 [Carissa; IP Litigation Specialist, 2025; "EU Drops Standard Essential Patent Reform
Plans," Pinsent Masons, https://www.pinsentmasons.com/out-law/news/eu-drops-standard-essential-
patent-reform-plans, thiele + aarora]

Plans to reform the legal framework around standard-essential patents (SEPs) have been withdrawn by
the European Commission after EU law makers failed to reach consensus on the changes it had
proposed. The Commission’s withdrawal of the proposed new EU regulation on SEPs was confirmed in
its work programme for 2025 (29-page / 434KB PDF), published earlier this week. In that document, the
Commission said the fact there is “no foreseeable agreement” on the reforms was the reason it is
withdrawing the regulation, adding that it will “assess whether another proposal should be tabled or
another type of approach should be chosen”. Patent experts at Pinsent Masons said the development has surprised industry
but would be welcomed by many. SEPs are patents that protect technology believed to be essential to implementing a technical standard. In
other words, you cannot operate a standard-compliant device without necessarily using the patented invention. Standards are important for
interoperability in industries including telecommunications, the Internet of Things, as well as in other sectors that use smart technologies, such
as energy and infrastructure. Standards are developed by businesses working together under the auspices of standard-setting organisations
(SSOs), such as the European Telecommunications Standards Institute (ETSI), which oversees the development of communications standards
vital to many businesses. SSOs like ETSI typically require SEP rights holders to make SEPs available for others to use by way of a licence on fair,
reasonable and non-discriminatory (FRAND) terms. Disputes on what constitutes ‘FRAND’ often arise in the context of SEP licensing
negotiations. Litigation can then follow if the parties are unable to agree. Disputes have arisen in many jurisdictions including the UK, Germany
and France, as well as in the US and China. With the draft new SEPs regulation it published in spring 2023, the Commission sought to improve
transparency and predictability in SEP licensing, improve fairness and efficiency in the licensing process, and limit costs that can arise from
disputes. The proposals set out new mandatory requirements for the registration and essentiality checking of SEPs. They also envisaged
aggregate royalty-setting mechanisms for technology standards, and a FRAND royalty rate determination procedure to be brought by the SEP
holder at the EU Intellectual Property Office (EUIPO) before a patent owner sues in EU national courts or the Unified Patent Court. The
The regulation, if
establishment of a new Competence Centre at the EUIPO to perform these functions was also proposed.
implemented as drafted, would have applied retroactively to previously published standards. However,
any standards where SEP licensing and FRAND questions do not “give rise to significant difficulties or
inefficiencies affecting the functioning of the internal market” would have been out-of-scope. Mark
Marfé of Pinsent Masons said: “On balance, the withdrawal of the SEP Regulation will be welcomed as
bringing greater certainty to the sector. There was concern how the regulation’s new requirements
would be carried out in practice. For example, whether sufficient experts would be found to effectively
operate the new Competence Centre. It was also unclear how the new EU facing regime would operate
alongside the UPC, which has now indicated its willingness to set a global FRAND rate in appropriate
circumstances.” Carissa Kendall-Windless, also of Pinsent Masons, said: "Practitioners in this area raised
concerns that the EUIPO lacks the necessary expertise in patent management, and the proposed
changes could have slowed technological progress. Overall, the withdrawal is seen as a victory for
inventors and small to large businesses, ensuring that the existing framework, which has been effective
in promoting innovation, remains in place." Sarah Taylor of Pinsent Masons added: “The proposals had
polarised the debate around the regulation of SEPs. They were largely seen as more favourable to
implementers, many of whom welcomed the proposed increase in transparency. On the other hand, the
proposed regulation was extremely unpopular with SEP holders who predicted it would increase costs
and place huge administrative burdens upon them, and would lead to delays in licensing negotiations.
That said, both sides questioned the proposed role of the EUIPO, which is responsible for managing EU
trade marks and EU registered designs, and which has no responsibility for European or unitary
patents.” “The draft regulation had been adopted by the European Parliament in February 2024, which
led to a significant amount of lobbying on both sides. Recent Commission announcements implied that it
intended to forge ahead with the proposals, but it has now done a complete U-turn. While the
withdrawal of the EU SEP Regulation was unexpected, it does perhaps reflect a change in the
Commission’s approach, as demonstrated by its recent emphasis on improving the EU's competitiveness
and boosting economic growth by closing the innovation gap, supporting the development of new
technologies and making it easier for companies to operate in the EU by reducing regulatory blocks to
innovation,” she said.

The UPC solves nothing, but the ITC solves the terminal to the DA.
Kessler '24 [Sterne, Kessler, Goldstein & Fox; 2024; "Global Battlegrounds: An Examination of Standard
Essential Patents at the UPC vs. the US ITC," Sterne Kessler, https://www.sternekessler.com/news-
insights/publications/global-battlegrounds-an-examination-of-standard-essential-patents-at-the-upc-v-
the-us-itc/, thiele + aarora]

However, as a relatively new venue, the UPC has a limited track record , particularly when it comes to SEP disputes . The
UPC has in fact issued only three SEP decisions, all within the past five months. Therefore, while the UPC has certainly become a forum
to watch when it comes to SEP disputes, there is another forum that shares many of the same characteristics as the UPC that should not be
forgotten. Indeed, the US International Trade Commission (ITC)
offers an established platform, with a longer history of
handling SEP-related investigations, which can provide greater clarity on how such cases are likely to be adjudicated. This article
provides an in depth look at the treatment of SEPs at the UPC and ITC. This article further highlights why SEP holders should consider both
forums when looking to enforce their patents, and why implementers should stay informed on current developments of both forums. The
UPC’s treatment of SEPs and other considerations UPC cases are decided relatively quickly, with the goal of resolving cases within 12 to 14
months. It is also generally less expensive to litigate at the UPC than at other European courts, such as local German courts. The UPC also has a
“loser pays” system, requiring the losing party to pay some of the costs of the winner. The UPC has two other important characteristics to
consider: (1) its ability to offer injunctive relief; and (2) its limitations on discovery . Unlike the general rules governing injunctions in
US district courts, which have explicit factors to consider, UPC judges have more discretion on whether to grant injunctions. For instance, the
UPC Agreement does not expressly require the court to find that a patent owner will suffer irreparable harm before it can grant an injunction.
Further, even if the court finds infringement, there is no automatic injunction like there is in other European courts. Rather, the UPC maintains
discretion on whether to grant an injunction. A first-instance injunction, when it is granted, may be provisionally enforced while an appeal is
pending. To do so, the plaintiff must put up security to cover the amount of compensation for any damage incurred or likely to be incurred by
the defendant if the injunction is enforced and subsequently revoked. Looking next at what discovery is available at the UPC, a party may only
obtain discovery on documents and things that are specifically identified to the court. This is more limited than the discovery available in the
US, as parties will have to justify their discovery requests and will have to know specifically what evidence they are seeking. In terms of expert
witnesses, the UPC only allows expert testimony in limited circumstances, and generally only written expert testimony. Because of these
limitations on evidence and the use of experts, well-prepared parties can potentially work around these limitations by
pursuing Section 1782 proceedings in the US. These proceedings offer parties an avenue to obtain sought-after discovery using the
broader evidentiary rules in the US. FRAND analysis and SEP holder behaviour before litigation As discussed below, the UPC made clear in
Panasonic and Netgear that it is possible to bring a fair reasonable and non-discriminatory (FRAND) defence at the UPC. If an implementer
brings such a defence, the UPC will likely use the Huawei v ZTE standard which analyses: (1) whether sufficient notification was given by the SEP
holder of potential infringement; (2) whether the SEP implementer is a willing licensee; (3) whether the SEP holder offered a FRAND compliant
offer; and (4) whether the SEP implementer made a FRAND compliant counteroffer. SEP cases so far At the time of this article, there have only
been three SEP cases decided by the UPC: Phillips v Belkin, Panasonic v OPPO, and recently, Huawei v Netgear. Phillips v Belkin was decided on
September 13, 2024. Phillips accused Belkin of patent infringement related to the Qi wireless standard. Belkin did not present a FRAND defence
in this case, presumably because the Qi wireless standard doesn’t have market dominance, and other charging technologies are available. The
case thus proceeded as a normal patent infringement case. It resulted in the first ever SEP injunction, as Phillips was able to prove infringement
and convince the court that an injunction was warranted. On November 22, 2024, the UPC decided Panasonic v OPPO, the first SEP case with a
FRAND defence. In its decision, the UPC lower court declared itself competent to hear FRAND defences according to the Huawei v ZTE standard.
Interestingly, Panasonic and OPPO attempted to settle the case prior to the final decision, but were unable to finalise the settlement before it
was handed down. The Court found OPPO to be infringing and that it had failed to present a valid FRAND defence. Looking at the application of
Huawei v ZTE standard, the court focused on the parties’ behaviour before and during litigation. Specifically, the UPC was concerned with
OPPO’s attempts to squash the UPC suit by filing a counter suit in the US, and OPPO’s attempts to avoid taking a licence. Notably, the UPC’s
decision is contrary to the European Commission’s stance on FRAND defences – which is that courts should generally only look at the initial
negotiations between parties – as the UPC looked at the overall conduct of the parties when making its decision. The UPC’s treatment of FRAND
defences was further refined on December 18, 2024, when the UPC handed down its decision in Huawei v Netgear. Here, the Court determined
that Netgear had infringed Huawei’s patents and didn’t present a valid FRAND defence. The court affirmed the application of the Huawei v ZTE
standard for FRAND defences and further refined the standard, requiring less formal review of the SEP holder’s conduct and adding more strict
requirements on implementers to be able to bring the defence. Specifically, the court in Netgear spent more time discussing what a “FRAND-
compliant counter-offer” looks like, holding that the SEP implementer should: (a) make a FRAND-compliant counteroffer without delay tactics;
(b) provide adequate security to cover potential liabilities; and (c) disclose precise details regarding the implementer’s use of the SEP.
Ultimately, the Court found that Netgear failed to provide any security to cover its potential liabilities and therefore was unable to advance a
FRAND defence. Unknowns of the UPC Even with all of the recent decisions that have come down from the UPC, there are still many
unknowns. As mentioned, the UPC is still in its early days, and thus will handle a host of issues for the first time in the months and years to
come. Further, the SEP cases that have been decided have all come out of the German branch of the court. It will be interesting to see how
other branches of the UPC handle SEP disputes. The ITC’s treatment of SEPs and other considerations Unlike the UPC the discovery
available and evidence admitted at the ITC is broad. The ITC generally allows third-party discovery, depositions, broader use of
expert witnesses at oral hearings, and other evidence that, at the UPC, would require motions to obtain. Similar to the UPC,
however, the ITC resolves disputes quickly , with investigations concluding within 16 to 18 months. The ITC also does not use the eBay
standard for its exclusion orders (which requires a showing of irreparable harm). Rather, the ITC follows Section 337 of the Tariff Act of 1930
and includes a requirement for the ITC to consider public interest factors before issuing an exclusion order. For example, in 2022, the
administrative law judge (ALJ) at the ITC found no violation in an investigation where Philips filed a complaint against Thales and other
respondents. The commission noted that even if it were to find that Thales was in violation of Philips’s patent rights, its recommendation would
be only to delay, and not deny, the exclusion order by 12 months because of public interest factors including COVID and Philips’ misconduct.
Other notable investigations include numbers 337-TA-1379 and 337-TA-1380, which involved SEPs relating to the H.264 standard. The ALJ found
that respondent Amazon had failed on all of its affirmative defences because it did not show that complainant Nokia had violated its FRAND
obligations. Amazon argued that Nokia’s negotiations with Amazon were in violation of its FRAND obligations because the terms were
unreasonable and discriminatory. Amazon further pointed to how Nokia’s rates had no objective economic basis and were higher than rates
offered by H.264 patent pools. The ALJ found this unpersuasive. Though some of these could be indicators of a FRAND violation, they were not
found to be dispositive. Because Amazon had failed to show that Nokia violated its FRAND obligations, the ALJ found in favour of Nokia and
found Amazon to be in violation of Section 337. However, just recently, the commission issued a decision in the 1380 investigation indicating
that it intends to review several SEP/FRAND-related findings in the ALJ’s initial determination. Therefore, for the first time in a long time, the
commission will seemingly address fundamental issues relating to investigations involving SEPs, including whether a complainant should be
precluded from seeking an exclusion order when the asserted patent is standard essential. The commission’s decision to review these
SEP/FRAND-related issues prompted the submission of strongly-worded public comments from companies and organisations on both sides of
these issues. A final decision is due on May 14, 2025. Takeaways When facing an SEP dispute, SEP holders and implementers should consider
both the UPC and the ITC, and the impact that bringing an SEP dispute to each forum could have on negotiations. Both forums have proven to
be attractive for SEP holders, but both also provide mechanisms for implementers to defend themselves against improper conduct. For SEP
holders, the UPC is a fast and cost-effective option with its broad jurisdiction over a population similar to the US, and its willingness to issue
multi-country injunctions. SEP holders should, however, remain mindful of the UPC’s newness, as the venue is still evolving after only a few
cases. The ITC, on the other hand, offers broad discovery and the possibility of powerful exclusion orders, with a favourable
track record for SEP holders regarding FRAND issue.
 AT: Holdup DA
https://edis.usitc.gov/external/attachment/845833-2341312.pdf
 AT: Executive Power Bad DA
*Add to Signing Statements AT: NB

ITC action limits presidential power.

Adduci II ’16 [V. James; partner at Adduci Mastriani & Schaumberg LLP; 2016; “The U.S. International
Trade Commission: Its Role in U.S. Trade Policy and Enforcement” A Centennial History of the United
States International Trade Commission, co-authored with Sarah E. Hamblin, Louis S. Mastriani, Deanna
Tanner Okun, and Tom M. Schaumberg,
https://www.usitc.gov/publications/other/centennial_book/chapter12.pdf, USITC, thiele + aarora]

Commission’s independence,839 Congress granted the Commission, rather than the

To support the
President, authority to determine violation of section 337 and to determine relief, including cease and desist
orders.840 Before granting such relief, however, Congress directed the Commission to consider the effect of said relief on
certain public interest factors, 841 weighing any negative impact on the public health and welfare against the
positive effects of protecting U.S. intellectual property rights: Should the Commission find that issuing an
exclusion order would have a greater adverse impact on the public health and welfare; on competitive conditions in the United
States economy; on production of like or directly competitive articles in the United States; or on the United States consumer,
than would be gained by protecting the patent holder (within the context of U.S. patent laws) then . . . such exclusion order
should not be issued.842 The shift in primary authority from the President to the Commission was significant. Leading
practitioners, testifying before the Senate’s Committee on Finance, had argued that the effort expended to bring investigations
to a conclusion under the authority of the President was unnecessary compared to any actual benefit from
“permit[ting] the President to use a section 337 proceeding as one of the means by which he could shape and influence
trade.”843 The Finance Committee’s report, on the other hand, “recognized . . . that the granting of relief 835 Trade Act of
1974, Pub. L. No. 93-618, §§ 171–175, 88 Stat. 2009–2011 (January 3, 1975). Prior to the passage of the 1974 Act, the
Commission instituted 72 preliminary investigations and 35 full investigations under Section 337. USTC, 1974 Annual Report,
1975, 13. 836 Ibid., § 337(c); Administrative Procedure Act, 5 U.S.C. § 551 et seq. 837 S. Rep. No. 93-1298 (1974), 196. 838 Pub.
L. No. 93-618, § 337. 839 S. Rep. No. 93-1298 (1974), 115, 193–199. 840 Pub. L. No. 93-618, §§ 201–203. 841 Ibid., § 337. 842 S.
Rep. No. 93-1298 (1974), 197. 843 Harvey Kaye and Paul Plaia, Jr., “Revitalization of Unfair Trade Causes in the Importation of
Goods: An Analysis of the Amendments to Section 337,” Journal of the Patent Office Society 57, nos. 4 and 5 (1975). Chapter 12:
Intellectual Property Investigations Page | 324 against imports could have a very direct and substantial impact on United States
foreign relations, economic and political.”844 Ultimately, Congress balanced a continued need for Presidential input with
procedural efficiencies inherent in vesting primary authority in the Commission by granting the President 60 days after receipt
of a final Commission determination to intervene and disapprove the Commission’s action for policy reasons845 Notably, “the
President’s power to intervene would not be for the purpose of reversing a Commission finding of a violation of section 337;
such finding [would be] determined solely by the Commission, subject to judicial review.”846 One of the practitioners
who testified before Congress regarding the lack of need for presidential involvement later predicted that future Presidents
rarely would invoke the authority to disapprove Commission action on violation.847 That statement has proven prescient, as
the President exercised that authority only five times from the enactment of the 1974 Trade Act through the end of 1987.848 In
2013, the United States Trade Representative (USTR), on behalf of the President, did so again, for the first time since 1987.849
Neg
DA
 Holdup
https://edis.usitc.gov/external/attachment/845833-2341312.pdf “in reality rand X solve holdup”
 AT: Independence---Trump Alt Cause
Trump is the death of ITC independence.
Abeles '2/25 [Scott Abeles, attorney at Carlton Fields; February 25, 2025; "Executive Order Making
'So-Called Independent Agencies' Directly Responsive to the President Is Another Nail in the Coffin of the
'Headless Fourth Branch of Government'", https://www.carltonfields.com/insights/publications/2025/
eo-making-so-called-independent-agencies-directly-responsive-to-the-president-is-another-nail thiele +
aarora]

On February 18, 2025, the Trump

administration issued its most straightforward attack on the discretion of what it described
as “so-called independent agencies.” Executive order 14215, titled “Ensuring Accountability for All Agencies,” requires that
all agency rulemaking be preapproved by the president and that the legal positions offered by any executive department on
behalf of the United States be consistent with the legal position held by the president or, by delegation, the attorney general. The executive
order is a striking foray in a long-running battle within the three branches of government over control of what is pejoratively known as the
“headless fourth branch of government” — the collection of regulatory agencies that devise and execute federal policy but are “independent”
from the president in the sense, generally, that the president may not remove such agencies’ leadership at will. Since at least 1935, when the
Supreme Court in Humphrey’s Executor v. United States upheld a provision of the Federal Trade Commission Act mandating that a
commissioner can be removed only “for cause,” the question of whether officials can constitutionally wield executive power without direct
accountability to the president has been the source of occasional, but vociferous, controversy. For decades, the scorecard of those battles was
lopsided in favor of agency independence, with supporters asserting that vesting agencies with some independent discretion did not unduly
hinder the president’s Article II authority to “take Care that the Laws be faithfully executed,” and provided benefits that fully restrained agency
“expertise” could not. On the other side, partisans argued that the same Article II vested all “executive Power … in a President” — a single
individual and not the executive branch writ large or the heads of any department within it. While no one questions that the president must
utilize other people to carry out his or her will, those on this side of the divide claim that no executive branch actor has discretion to vary that
will. But in recent years, supporters of the latter view, known in academic legal circles as the “unitary executive theory,” have earned critical
victories in the Supreme Court. Ironically, those later victories trace directly to a 7–1 loss by unitary executive supporters in Morrison v. Olson
(1988), likely owing to the author of the solitary dissent, Justice Scalia, his dissent’s power and clarity, and his subsequent influence on a
generation of scholars, lawyers, and judges. In Morrison, the rest of the court held that an independent counsel, neither appointed by nor
directly removable by the president, could constitutionally wield prosecutorial power. But in more recent cases rejecting a lack of presidential
control over the Public Company Accounting Oversight Board and the director of the Consumer Financial Protection Bureau, the court has
followed the logic of Justice Scalia’s Morrison dissent without expressly overruling that case. The executive order itself does not specifically
assert that any restriction on the president’s power to remove the head(s) of any executive agency is unconstitutional and will no longer be
respected. But the order otherwise adapts the unitary executive theory: The Constitution vests all executive power in the
President and charges him with faithfully executing the laws. … However, previous administrations have allowed so-called “independent
regulatory agencies” to operate with minimal Presidential supervision. … For the Federal Government to be truly accountable to the American
people, officials who wield vast executive power must be supervised and controlled by the people’s elected President.
President Trump’s actions have embraced the same view. He “fired” a Democratic member of the National Labor
Relations Board, though the law restricts removal of such members to neglect of duty or malfeasance in office. He also has announced his
intention to fold the U.S. Postal Service, an independent establishment within the executive branch, into the Commerce Department.
Challenges to these actions, or similar actions, will almost certainly make it to the Supreme Court, which will decide whether cases like
Humprey’s Executor and Morrison survive. As for this executive order in particular, the veto power it assigns the president over independent
agency rulemaking, and over all legal positions offered in the name of the United States, is novel and untested. Congress has historically set the
rulemaking requirements for agencies, either through the Administrative Procedure Act or in specific statutes, presenting a potential separation
of powers clash. As for legal positions, it is not unusual for the DOJ to represent the agencies in litigation, and the solicitor general invariably
represents all agencies before the Supreme Court, so for major legal issues the executive order is unlikely to make much difference. The
executive order will be material in lower courts where the DOJ and the agency have irreconcilable differences, but that is also likely
to be rare. It bears emphasis, in addition, that agencies’ legal interpretations of statutes no longer bind federal courts since Chevron deference
was overturned last year, so the federal government should in all cases be incentivized to put forward the best interpretation of the particular
provision, regardless of its author. That said, the executive order, or at least its principles, have already spilled over into discrete areas of
related litigation, including in a major constitutional challenge to the insulation of the SEC’s administrative law judges and in a decision to drop
a long-running action against Coinbase.
 Trade Cooked
Protectionist sentiments and tariffs kill trade.
Yardeni ‘4-2 [Dr. Ed Yardeni; President, Yardeni Research, Inc., former Chief Investment Strategist at
Deutsche Bank; 2025; “Author Page” Yardeni QuickTakes, www.yardeniquicktakes.com/author/dr-ed-
yardeni/, thiele + aarora]

It's time to talk about an unpleasant subject: Is a depression possible? We aren't forecasting a depression, just worrying about one.
And we suspect you are too. We continue to believe that the economy will muddle down the middle between boom and bust. We
expect that another drop in U.S. interest rates plus a lower dollar will induce other industrial countries to lower their interest rates. Then, we
hope that a rebound in the industrial economies will eliminate the global glut of commodities, products, and labor. This
would relieve the deflationary pressures that are behind the international debt crisis. Growth in the industrialized world would stimulate the
exports of debt-ridden nations. Worldwide competition and ample productive capacity should keep a lid on inflation. Policymakers could
concentrate on promoting growth. This scenario is bullish for both bonds and stocks. Sound too good to be true? Maybe so. But this is the
scenario we are rooting for. We admit, a lot has to go right for it to work. Unfortunately, a lot is going wrong: commodity prices are falling;
debtors are resisting austerity programs; agriculture is in a depression; industry is in a recession; nonperforming loans are increasing; banks are
failing; the trade deficit is widening; protectionism is gaining support; fiscal policy is gridlocked; and the Fed is in a
box.These are not the sort of problems we associate with the garden-variety postwar business cycle. Rather, they are very reminiscent of the
events that triggered or exacerbated the first phase of the Great Depression from 1929 to 1933. The parallels are becoming obvious to all. With
increasing frequency, clients are asking us to put a probability on another depression.[1] A few tell us they believe that we are
already in
the initial stage of a depression.Is a depression possible? How different is the current economic situation from that of the Great
Depression? Upon reviewing the economic events of 1929 to 1933, we discovered a number of disturbing similarities. And the differences are
rerun of the 1930s is not very likely, but it is a risk if trade
even more disturbing![2] Yet, on balance, we conclude that a
protectionists have their way.In our opinion, the single most catastrophic cause of the Great Depression was the Smoot-Hawley
Tariff of June 1930—not the stock market crash of October 1929, not the collapse of the Austrian Kreditanstalt Bank in May 1931, not the sharp
increase in the Fed's discount rate during October 1931, not the tax increase of 1932, not the subsequent bank failures or collapse of the
money stock. All these events contributed to the economic explosion, but the detonator was the tariff.[3] That's confirmed by the collapse in
industrial production immediately after the tariff was enacted (Exhibit 1).Today, protectionist sentiments are spreading at an
alarming rate. U.S. legislators have introduced more than 300 protectionist bills. The most sweeping proposal yet has come from the
Democrats—the Trade Emergency and Export Promotion Act of 1985. It was introduced in the Senate during July by Lloyd Bentsen of Texas and
in the House by Dan Rostenkowski of Illinois and Richard Gephardt of Missouri. The bill, which would impose a 25% tax on all imports
from Japan, South Korea, Taiwan, and Brazil, is given a good chance of passage in the House when
Congress reconvenes in September. Congress is also considering a bill that would impose stiff textile quotas on 11 of the United States' most
important Asian trading partners. The bill should pass easily in the House this fall since it has 291 cosponsors.

Tariff wars are the status quo and trade is dead.

UBS ‘3-5 [UBS Editorial, Wealth Management Fund in the USA, “Tariff Scenarios.” Wealth Management
USA, UBS, 5 Mar. 2025, www.ubs.com/us/en/wealth-management/insights/investment-research/potus-
47/articles/tariff-scenarios.html#watching., thiele + aarora]

CIO scenarios for US trade tariffs

Scenario ProbabilityOutcome: Tariffs in place as of December 2025

Aggressive (Base 50% China effective tariff remains at 30% (from 10% in 2024) to address a wide range of grievance
case) trading practices, intellectual property theft, and production of precursor chemicals in fentan
faces wide-ranging reciprocal and other product tariffs (e.g., metals) focused on higher effecti
corporate tax rates, and limiting transshipment of Chinese goods. EU reciprocal retaliation. C
substantially based on wide range of concessions to deal with immigration and drug traffickin
Scenario ProbabilityOutcome: Tariffs in place as of December 2025

export quotas and to limit Chinese transshipment.

Chinese tariffs increased to 60% as proposed in the 2024 presidential campaign. EU reciproca
Highly aggressive Canada and Mexico blanket tariffs remain in force. US trade courts side with the executive br
(Downside) 35% to apply blanket tariffs. Reciprocal retaliation and US escalatory response.

China tariffs partially reduced to below 30%; Phase 1 deal revisited. EU faces some export res
Limited (Upside) 10% and Mexico tariffs removed in full.

Benign (Upside) 5% Resolution of trade disputes. Tariffs on the EU, Canada, Mexico, and China revert to 2024 con

Source: UBS, as of 4 March 2025 What happened? President Trump's 1 February Executive Orde r
implementing US tariffs on Canada and Mexico took effect on Tuesday, 4 March after a 30-day pause. As
a result, the administration will levy additional 25% tariffs on imports from Canada and Mexico, except
for a lower additional 10% tariff carve-out on Canadian energy. President Trump also amended the
original Executive Order on 3 March to double the additional tariffs on China to 20% from the initial 10%
that took effect on 4 February. The de minimis exemption for parcels from Mexico and Canada valued at
less than USD 800 remains in effect until such a time when Customs and Border Protection can process
the tariffs. China and Canada immediately responded with a wide slate of reciprocal retaliatory
measures, while Mexico will announce its response on Sunday. China's initial calibrated retaliation in
early February was meant to send a signal but not endanger the Chinese economy. The measures
included 10-15% tariffs on a range of energy products, agricultural machinery, and heavy-duty trucks; an
antitrust investigation into Google; export controls on critical elements; and a complaint filed with the
WTO's dispute resolution. China responded to the latest tariff increase with additional tariffs as high as
15% on US agricultural exports and added 10 more companies to its unreliable entities list. Canada's
reciprocal retaliation comes in two stages. In a first round effective immediately, Canada imposed 25%
tariffs on roughly CAD 30 billion (USD 20.6 billion) worth of US goods imports, including food, beverages,
household items, and clothing. A second round of retaliatory tariffs are slated to take effect 21 days later
at the same rate on an additional CAD 125 billion of products that could include big-ticket items like
cars, trucks, steel, and aluminum. The combined effect of the tariff moves since Inauguration Day has
lifted the effective US tariff rate by roughly 7 percentage points to nearly 10% from just over 2% (see
Figure 1). By comparison, the US effective tariff rate rose from 1.4% to just 2.4% during the first Trump
administration and the Biden administration.

Trade war now.

Bremmer ‘3-10 [Ian, Trump’s Tariffs Are Not a Negotiating Tactic. 10 Mar. 2025, www.project-
syndicate.org/onpoint/trump-s-trade-war-1, thiele + aarora]

Donald Trump’s return to the White House has ushered in a new era of American trade policy, one that
represents a fundamental break from the past – including from his first term. Trump is significantly less
deterred by consequences than last time. The “tariff wall” that he wants to build around the United
States is not just a more aggressive version of his transactional first-term policies. Rather, it represents
an effort to reshape the global economic order and America’s place in it. The wall’s first bricks were laid
on March 4, when Trump imposed 25% tariffs on imports from Canada and Mexico, and doubled the
10% tariffs on Chinese goods, pushing the cumulative rate on Chinese imports above 30%. Canada and
Mexico immediately announced retaliatory measures targeting politically sensitive US industries and
congressional districts. After two days of furious lobbying and market turmoil (for which Trump blamed
“globalists”), the US granted a one-month reprieve for cars from Mexico and Canada and products
compliant with the US-Mexico-Canada Agreement (USMCA). But these temporary exemptions should
not be taken as a sign that Trump is backing away from imposing tariffs on America’s closest trading
partners. Trump has vowed to levy 25% tariffs on steel and aluminum imports by March 12, which will
hit Canada especially hard. A tariff on global auto imports is supposed to follow on April 2, harming not
only in Japan, South Korea, and Germany, but also Mexico and Canada, where US carmakers have built
complex cross-border supply chains. The administration also plans to unveil worldwide “reciprocal”
tariffs, designed to match the tariffs that other countries place on the US, in early April. Officials will be
scrutinizing all non-tariff practices (taxes, subsidies, currency manipulation, regulations) that the
administration considers to be “unfair.” Countries such as India, Argentina, South Korea, and Brazil could
face the stiffest measures. But the difference between Trump’s immediate, aggressive use of tariffs and
what we saw during his first term is not just a matter of degree. Gone are the days when tariffs were
used principally as leverage to be bargained away in negotiations. Instead, the administration’s 2025
Trade Policy Agenda frames them as critical tools to reshore supply chains, revitalize the US
manufacturing base, and replace tax revenue. The goal is not to address bilateral trade deficits or punish
unfair practices, but rather to protect “the soul” of America and charge a sufficiently high premium on
US market access. Negotiating the tariffs away would mean sacrificing these core policy objectives. This
shift reflects Trump’s conviction that the postwar liberal economic order was not the foundation of
American prosperity, but its undoing. As he sees it, the US surrendered its economic sovereignty after
World War II by reducing tariffs and allowing unrestricted capital outflows. Trump began to challenge
the bipartisan consensus supporting market liberalization and global integration during his first term,
but now he is forcing the issue. His solution is to leverage America’s economic, military, and
technological dominance to reshape global trade flows to its advantage and correct decades of
misguided policy. That’s what the “reciprocal” tariffs are intended to do: not to create negotiating
leverage, but to restructure global trading relationships. At its core, however, the tariff-wall strategy has
an audience of one: China. As indifferent as Trump has been to negotiating off-ramps for Canada and
Mexico, he has shown even less interest in engaging with the Chinese government. The two rounds of
10% tariffs were not preceded by specific demands, nor have they been followed by attempts to start a
bargaining process. Although China’s retaliation has been measured so far, the average US tariff rate on
Chinese imports is rapidly approaching the danger zone where China’s leaders will soon feel that they
must push back harder, lest they look weak domestically. Even if some in the Trump administration see
room for compromise with China, the preference is for containment – or even confrontation. As it starts
building its tariff wall, the US will force allies to make a stark choice: purge Chinese components and
capital from your supply chains – at least in the growing number of sectors deemed critical to national
security (such as semiconductors, critical minerals, steel, and aluminum) – or you will be shut out of US
markets altogether. The risk of a new cold war is real, and the potential for escalation is high. A
breakdown in US-China relations would have catastrophic consequences for the global economy and its
two largest players. But the likely long-term impact of Trump’s trade strategy on the global economic
architecture is even more consequential. With no grand bargain in the works vis-à-vis China or anyone
else, we are witnessing a transition from a rules-based system of managed economic integration to one
of coerced decoupling, chaotic fragmentation, and economic self-reliance. Trump is likely to stay the
course even in the face of severe economic dislocation. Of course, the administration is hoping that
American consumers and businesses will feel the benefits of its strategy sooner rather than later. But
Trump has already accepted that tariffs may cause “a little disturbance” for the US. “Will there be some
pain?” he asked in February. “Maybe (and maybe not!) But we will make America great again, and it will
all be worth the price that must be paid.” Trump’s political support among Republican voters is durable
enough to withstand economic fallout, at least for a while. And unlike during his first term, he faces no
restraining voices within his cabinet or in Congress. As a lame-duck president largely concerned about
his legacy, he has a significantly higher tolerance for pain than last time, both politically and in terms of
market impact. That means his tariff wall is likely to endure. The world is entering a period of
heightened economic uncertainty not because tariffs will cause some inflation and supply-chain
disruptions, but because the US is actively dismantling the economic order it created. Whether Trump’s
effort to recreate American hegemony succeeds or fails, it represents the most significant challenge to
the global trading system since its inception.