The Federal Circuit Expands Domestic Industry Clearing the Way for More ITC Complaints in the Future

The Federal Circuit’s decision in Lashify, Inc. v. International Trade Commission, No. 23-1245, 2025 WL 699368 (Fed. Cir. Mar. 5, 2025), could mark a significant shift in how the “domestic industry” requirement under Section 337 of the Tariff Act of 1930 is interpreted. Under that statute, any company bringing an investigation before the ITC must prove it has established a domestic industry in the U.S. related to the patents it’s asserting.

In this case, Lashify—a company specializing in eyelash extensions—asserted three of its patents at the ITC. Id. at *1. Its U.S.-based operations included sales, marketing, warehousing, quality control, and distribution for its patented products. But Lashify manufactures its products overseas before importing them into the U.S. Id. At the ITC, the Commission discounted these expenses and ruled that Lashify hadn’t satisfied the domestic industry requirement because “sales and marketing activities alone cannot satisfy the domestic industry requirement” and that its other expenses resembled those of a “mere importer.” Id. at *5.

Lashify appealed, arguing that the Commission should have considered its U.S. operations in the domestic industry analysis. The Federal Circuit agreed, sending the case back to the ITC to reconsider whether Lashify had met the necessary threshold. Id. at *12. The court specifically disagreed with the ITC’s claim that Lashify’s domestic activities were irrelevant under the statute’s requirement that a patentholder employ “significant labor or capital” in the U.S. Id. at *11-12. And the Federal Circuit made clear that the law does not require domestic manufacturing. Id. at *8-9. Instead, the ITC should consider investments in research and development, marketing, and other commercial activities when determining whether a company has established a domestic industry. Id. at *12.

What the decision means for patentholders

This decision broadens the interpretation of the domestic industry requirement. Rather than focusing strictly on U.S.-based manufacturing, the ruling shifts the focus to a company’s overall investment the U.S. The Federal Circuit’s ruling will likely permit more ITC complaints to proceed for patentholders who may not have large-scale manufacturing operations but still engage in research and marketing of their patented products in the U.S. And we’ll likely see more ITC complaints moving forward, as companies that previously assumed they needed U.S.-based manufacturing may now have a clearer path to asserting their rights based on other domestic activities.