What is a 337 investigation?

 

The "337 Investigation" refers to the investigation conducted by the United States International Trade Commission (USITC) under Section 337 of the Tariff Act of 1930. This investigation primarily focuses on unfair import trade practices, especially issues related to intellectual property rights infringement, such as patents, trademarks, copyrights, unfair competition, etc. If the USITC determines that an imported product or practice indeed violates US intellectual property rights or other unfair trade practices, it can issue an order to prohibit the importation of that product. For foreign manufacturers and exporters, this could mean that their products may be barred from entering the US market.

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It's important to note that although the results of a 337 investigation can lead to a ban on the importation of goods, it does not involve any monetary compensation. Instead, to obtain compensation, the rights holder typically needs to sue the alleged infringer in US federal court. As a result, many companies facing intellectual property disputes may conduct a 337 investigation with the USITC and file a lawsuit in federal court simultaneously.

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337 Investigation Procedure and Timeline?

 

1. Filing a Complaint: A party (complainant) believing their intellectual property rights have been violated by an imported product files a complaint with the USITC.

2. Initiation of Investigation: Upon receiving a complaint, the USITC has 30 days to decide whether to initiate an investigation. If it decides to proceed, it will assign an Administrative Law Judge (ALJ) to handle the case.  Day 30

3. Evidence Discovery Phase: The parties exchange relevant information. This stage includes fact discovery, where parties gather evidence about the case, and expert discovery, where expert testimonies are provided. Months 7-8

4. Pretrial Submissions: Parties submit briefs, witness statements, lists of evidence, and other relevant documents to the ALJ.     Month 9

5. Evidentiary Hearing: This is akin to a trial where parties present their arguments, witnesses, and evidence to the ALJ.     Month 10

6. Initial Determination (ID): After the hearing, the ALJ issues an ID containing findings of fact and legal conclusions. The ID will state whether there has been a violation of Section 337.     Month 13

7. Commission Review*: Parties may request the full Commission to review the ALJ's ID. The Commission may also decide to review the ID on its own. After review, the Commission can affirm, modify, or reverse the ID.    Month 17

8. Remedial Orders: If a violation is found, the Commission may issue an Exclusion Order, instructing the U.S. Customs and Border Protection (CBP) to block infringing products at the border. The Commission can also issue a Cease and Desist Order, prohibiting certain activities related to the infringing products within the US.

9. Presidential Review: USITC's Exclusion or Cease and Desist Orders then undergo a 60-day review by the President of the United States (or the U.S. Trade Representative - USTR acting on behalf of the President). During this period, the orders can be disapproved for policy reasons, although such disapproval is rare.

10. Enforcement and Penalties: The Commission can issue fines for violation of its orders. The CBP is responsible for enforcing Exclusion Orders at border ports.

11. Appeal: Parties can appeal the Commission's decisions to the U.S. Court of Appeals for the Federal Circuit.

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*Note: The Commission consists of six members (three from each political party, Democrats and Republicans), appointed by the President and confirmed by the Senate. Its mission includes three aspects: (1) "to investigate and make determinations on imports claimed to injure domestic industries or violate U.S. intellectual property rights"; (2) "to provide independent analysis and information on tariffs, trade, and competitiveness"; and (3) "to maintain the United States' tariff schedule."

 

Consequences of a 337 Investigation Violation?

 

The USITC is a powerful venue for addressing intellectual property disputes because of the relief it provides: If the plaintiff successfully proves a violation of Section 337, the U.S. Customs and Border Protection (CBP) will block the importation of that product into the United States. Thus, the plaintiff effectively obtains a ban on the defendant selling their product in the US market, an Exclusion Order. However, the USITC does not have the power to grant financial compensation for damages caused by past infringement acts; all relief is based on prohibitory orders for future actions.

 

Exclusion Orders (EO)

• A Limited Exclusion Order (LEO) excludes only the products of specific defendants, including any goods representing their importation. A General Exclusion Order (GEO) typically excludes all infringing products, regardless of the source.

• A GEO is justified in circumstances such as: a. To prevent circumvention of LEOs directed at specific defendants; or b. When there is a violation, but it is difficult to identify the sources of infringing products. The plaintiff seeking a GEO must request this relief in the complaint and needs a higher standard of proof: "substantial, reliable, and convincing evidence."

 

Cease and Desist Orders (CDO)

• A CDO prohibits certain activities within the US related to the defendants found to violate Section 337, such as the sale and distribution of products imported before the issuance of an exclusion order. The purpose of a CDO is to prevent circumvention of LEOs or GEOs, for example, if a defendant imports a large quantity of infringing products immediately before an exclusion order is issued and stores them for continued sales once importation is blocked. This typically requires the plaintiff to demonstrate that the defendant has a "commercially significant inventory" in the US. Although the USITC does not have the power to award damages for the infringement of IP rights, it can impose fines of up to $100,000 per day for violations of any CDO.

 

Bond

• The USITC can also allow the defendant to post a bond to continue importing the contested products during the presidential review period. The President, through the USTR, can disapprove the USITC's exclusion or cease and desist orders during the 60-day review. If the defendant pays the bond, they may continue to import products during this period; the bond is held in escrow, and if the President approves the exclusion or cease and desist order, the bond is ultimately transferred to the plaintiff. The purpose of the bond is to prevent continued imports from harming the plaintiff during the presidential review. The plaintiff must prove the necessity and amount of the bond. When there is reliable price information in the litigation record, the Commission usually sets the bond amount to eliminate the price difference between the plaintiff's product in the US and the imported infringing products. The Commission can also use a reasonable royalty rate when the evidence in the litigation record can determine a reasonable royalty fee. When the litigation record indicates that calculating price differences is impractical, or there is insufficient evidence to determine a reasonable royalty fee, the Commission may levy a bond amounting to 100% of the import price. The bond amount is linked to the import price of the goods: for example, if the reported import value of the defendant's product to the US Customs is $100 and a 30% bond is imposed, then the bond for each imported product of the defendant during the presidential review period is $30.

 

Difference Between 337 and 301 Investigations?

Section 301 and Section 337 investigations are two main types of investigations in the United States' foreign economic and trade practices. Although both investigations are related to intellectual property, their focus, application scenarios, objectives, and implementing bodies are different. Section 301 investigations are more concerned with macro trade practices and policies, while Section 337 investigations are more targeted at specific goods and concrete infringement actions. Below are the main differences between Section 301 and Section 337 investigations.

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