Section 337 Investigations

Experience Matters

Section 337 is a distinctive area of international trade and intellectual property law. Its procedures, remedies, and strategic considerations differ significantly from conventional federal-court litigation.

For a complainant, the objective may be to stop infringing imported products from entering the United States and protect an important U.S. market. For a respondent, the objective may be equally consequential: preserving access to the U.S. market and protecting a critical product line or supply chain.

In either circumstance, decisions made at the outset of an investigation can influence the course of the entire proceeding.

Adduci LLP's Section 337 practice is grounded in decades of experience before the United States International Trade Commission. Adduci LLP understands Section 337 not simply as a form of patent litigation, but as a specialized international trade remedy with its own procedures, jurisprudence, institutional history, and strategic demands.

Adduci LLP represents clients through every stage of the process — from pre-filing analysis and preparation of the complaint or response, through discovery, motions, expert proceedings, evidentiary hearings, Commission review, remedy and public-interest proceedings, Customs-related issues, and appellate review.

That depth of experience enables Adduci LLP to approach each investigation with a practical understanding of both the legal issues before the Commission and the commercial consequences for the client.

When Access to the U.S. Market Is at Stake

A Section 337 investigation can place an entire product line — and sometimes a substantial portion of a company's U.S. business — at issue.

Whether a company is seeking to protect its intellectual property from infringing imports or defending its ability to continue importing products into the United States, experienced ITC counsel can be critical.

Adduci LLP's objective is straightforward: understand each client's technology, business, and commercial objectives; develop the strongest available legal and factual strategy; and draw upon decades of experience before the Commission to pursue the best possible result.

Section 337 Investigations Before the U.S. International Trade Commission

Section 337 of the Tariff Act of 1930, codified at 19 U.S.C. § 1337, is a federal trade statute administered by the United States International Trade Commission (“ITC” or “Commission”). It provides a specialized mechanism for addressing certain unfair acts and unfair methods of competition involving articles imported into the United States.

Section 337 investigations most commonly involve allegations that imported products infringe United States intellectual property rights, particularly utility and design patents and federally registered trademarks. Section 337 may also apply to other forms of unfair competition involving imported articles, including copyright infringement, trade secret misappropriation, trade dress infringement, passing off, and other unlawful competitive practices.

Jurisdiction and the Domestic Industry Requirement

A Section 337 investigation differs significantly from conventional intellectual property litigation in federal district court. The Commission's jurisdiction is directed principally toward imported articles and unfair acts associated with their importation or subsequent sale in the United States.

In intellectual-property-based investigations, a complainant generally must establish the existence of a qualifying domestic industry relating to the intellectual property right being asserted. Depending upon the circumstances, the domestic industry requirement may be satisfied through significant investment in plant and equipment; significant employment of labor or capital; or substantial investment in exploitation of the intellectual property, including engineering, research and development, or licensing activities.

The domestic industry requirement is a distinctive and often important element of Section 337 litigation.

Commencement of an Investigation

A Section 337 proceeding generally begins with the filing of a complaint with the Commission. The complaint identifies the proposed respondents, the imported products at issue, the alleged unfair acts, and the basis for the Commission's jurisdiction. In an intellectual property investigation, the complaint also identifies the intellectual property rights asserted and sets forth allegations concerning the required domestic industry.

The Commission reviews the complaint and determines whether to institute an investigation. If an investigation is instituted, the Commission publishes a Notice of Investigation defining the scope of the proceeding and identifying the parties and claims to be investigated.

The investigation is ordinarily assigned to an Administrative Law Judge (“ALJ”), who conducts the adjudicatory phase of the proceeding.

Discovery and Pre-Hearing Proceedings

Section 337 investigations generally proceed on an expedited schedule. The Administrative Law Judge establishes procedural deadlines governing discovery, motions, expert reports, claim construction where applicable, pre-hearing submissions, and the evidentiary hearing.

Discovery may include document production, interrogatories, requests for admission, depositions, expert discovery, subpoenas, and other forms of factual and technical investigation.

Because Section 337 proceedings frequently involve sophisticated technologies and complex intellectual property issues, the parties may present extensive technical, economic, and expert evidence.

The Evidentiary Hearing

Unless the investigation is resolved earlier, the Administrative Law Judge generally conducts an evidentiary hearing similar in important respects to a bench trial in federal court.

Witnesses may testify and be cross-examined, expert testimony may be presented, documentary evidence may be admitted, and the parties may submit legal and factual arguments concerning the alleged violation.

Following the hearing and post-hearing proceedings, the Administrative Law Judge issues an Initial Determination addressing whether a violation of Section 337 has occurred.

Commission Review

The Initial Determination is subject to review by the Commission. The Commission may determine not to review the Initial Determination, or it may review some or all of the issues decided by the Administrative Law Judge.

Following its review, the Commission makes the agency's final determination concerning violation and, when appropriate, remedy, the public interest, and bonding.

Final Commission determinations are subject to judicial review by the United States Court of Appeals for the Federal Circuit.

Remedies

The principal remedies available in a Section 337 investigation are exclusion orders and cease and desist orders. Unlike a federal district court patent infringement action, the Commission does not award monetary damages.

A limited exclusion order generally directs U.S. Customs and Border Protection to exclude covered articles associated with specified respondents from entry into the United States.

Under appropriate statutory circumstances, the Commission may issue a general exclusion order, which can exclude infringing articles regardless of their source. General exclusion orders are particularly significant where the statutory requirements for broader relief have been established.

The Commission may also issue cease and desist orders directed to respondents engaged in prohibited commercial activities involving covered imported articles in the United States.

Presidential Review and Enforcement

Certain remedial orders issued by the Commission are subject to a 60-day period of Presidential review. During that period, covered articles may, under appropriate circumstances, be permitted to enter the United States under a bond established by the Commission.

If the remedial order is not disapproved during the Presidential review period, it becomes final.

Exclusion orders are enforced at the border by U.S. Customs and Border Protection. Cease and desist orders are enforced by the Commission and may carry substantial civil penalties for violations.

The Public Interest

Before issuing relief, the Commission considers statutory public-interest factors. These include the effect of the proposed remedy upon public health and welfare, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, and United States consumers.

Public-interest considerations therefore form an important part of the Commission's remedial authority under Section 337.

A Specialized and Expedited Trade Remedy

Section 337 occupies a distinctive position at the intersection of intellectual property law, international trade law, and administrative litigation.

Its expedited procedures and powerful exclusionary remedies make the ITC an important forum for disputes involving imported products. For intellectual property owners, Section 337 provides a mechanism for seeking to prevent infringing imported articles from entering the United States. For importers, manufacturers, distributors, and other respondents, a Section 337 investigation can directly affect continued access to the U.S. market.

The combination of expedited adjudication, specialized administrative procedures, complex intellectual property issues, and border-enforced remedies makes Section 337 practice a unique area of United States trade law.