In-Depth Explanation of ITC Section 337 Investigations

A Section 337 investigation conducted by the U.S. International Trade Commission (ITC) is a quasi-judicial proceeding that addresses unfair trade practices related primarily to intellectual property (IP) infringement involving imported products. This analysis covers the Section 337 investigation process, strategies of complainants and respondents, filing requirements, and hearing procedures.

I. Overall Procedure and Timeline of a Section 337 Investigation

A 337 investigation is typically initiated by a rights holder filing a complaint. Once the ITC decides to institute an investigation, it proceeds through phases such as discovery, evidentiary hearing, Initial Determination (ID) by an Administrative Law Judge (ALJ), Commission review/final determination, and Presidential review. The process is fast-paced and rigorous, usually completed in 12–16 months. The table below outlines the typical phases and timing:

Phase	Typical Timeline	Description
Complaint Submission	Day 0	The complainant submits a formal complaint to the ITC. The Office of Unfair Import Investigations (OUII) reviews the complaint within 20 days and advises the ITC whether to initiate the investigation.
Institution of Investigation	~30 days from filing	The ITC votes to institute the case. Normally within 30 days; if temporary relief is requested, up to 35 days. The ITC publishes a notice in the Federal Register upon institution.
Notice and Response	Immediately after institution	The ITC serves the complaint and notice on the respondents and appoints an ALJ. OUII assigns an investigative attorney. Respondents must swiftly organize a defense team and prepare an answer.
Answer to Complaint	Within 20 days (25–30 days for foreign respondents)	Respondents must address each allegation and raise defenses. Failure to respond timely may lead to default judgment and issuance of exclusion orders.
Scheduling Order	Within 45 days	ALJ holds an initial pre-hearing conference and sets a procedural schedule and target date (usually 12–16 months). Ground Rules are issued, covering motion practice, discovery, and submissions.
Discovery	Begins after institution, lasts 5–10 months	Modeled after civil litigation: interrogatories, requests for production, depositions (including international), expert reports, and site inspections. Responses due in 10 days unless extended.
Evidentiary Hearing	~8–9 months after institution	Pre-hearing submissions and motions are filed. Hearings last several days to weeks. Parties present opening statements, witness testimony, and legal arguments. Hearings are generally closed due to confidentiality.
ALJ Initial Determination (ID)	~2–3 months post-hearing	Parties file post-hearing briefs within 2–3 weeks. ALJ issues ID approximately 4 months before the target date. If a violation is found, a Recommended Determination on remedy and bond is issued within 14 days.
Commission Review and Final Determination	0–60 days post-ID	Parties may petition for review within 12 days. If not reviewed, the ID becomes final after 60 days. If reviewed, the Commission issues a Final Determination, possibly modifying or reversing the ALJ.
Presidential Review and Enforcement	60 days after final decision	If a violation and remedy are found, the decision enters a 60-day presidential review (delegated to the U.S. Trade Representative). If not vetoed, the exclusion order becomes enforceable by U.S. Customs. Respondents may appeal to the U.S. Court of Appeals for the Federal Circuit within 60 days.

Note: Actual timelines may vary depending on case complexity. Some steps may be expedited (e.g., for temporary relief) or terminated early via settlement or withdrawal.

The fast, intensive nature of 337 investigations—typically concluded within a year—makes them significantly faster than federal court IP litigation. This requires parties to act swiftly at each stage or risk losing rights or facing adverse rulings.

II. Complainants’ Common Claims and Litigation Strategies

1. Types of Claims

Over 85% of Section 337 cases involve patent infringement. Other claims may include trademark infringement, copyright infringement, mask work violations (semiconductor layout designs), design patent infringement, trade secret misappropriation, false advertising, passing off, false origin designation, and antitrust violations.

Patent claims dominate due to the ITC's power to quickly block infringing imports.

2. Domestic Industry Requirement

To obtain relief, the complainant must prove the existence of a domestic industry related to the IP right at issue, based on both technical and economic prongs:

• Technical prong: The complainant (or licensee) must practice the asserted IP in the U.S.—through production, R&D, etc. Mere ownership of IP without U.S. implementation is insufficient.

• Economic prong: The complainant must show substantial U.S. investment—e.g., in facilities, labor, licensing, or engineering tied to the IP.

Importantly, the complainant need not show actual harm—only that the domestic industry objectively exists. Foreign companies can also meet this standard if they invest substantially in the U.S.

To meet this requirement, complainants often prepare detailed evidence: facility investments, R&D expenses, workforce data, U.S. market usage, etc. Non-practicing entities may qualify through substantial licensing activity ("licensing-based domestic industry"), as long as investment is significant.

3. Relief and Strategic Requests

The complainant must clearly state the requested remedies in the complaint. Section 337 does not provide monetary damages, but offers strong injunctive relief:

• Limited Exclusion Order (LEO): Prohibits import of infringing products from specified respondents.

• General Exclusion Order (GEO): Prohibits import of infringing products from any source, available only if widespread infringement or circumvention is proven.

• Cease and Desist Order (C&D Order): Prohibits U.S. sales and commercial activities involving infringing inventory.

The complainant may seek one or all of the above. Relief is enforced via U.S. Customs, making it highly effective.

A Public Interest Statement must also be filed, addressing potential impacts of the requested relief on public health, competition, and consumers. Historically, public interest has rarely led to denial of relief (notable exceptions include standard-essential patent cases).

4. Key Litigation Strategies

• Speedy Injunction via ITC: Complainants often seek import injunctions via ITC while pursuing damages in federal court. Respondents typically request stays under 28 USC §1659 pending ITC outcomes. The dual-track strategy is common.

• Caution with Temporary Relief: While possible, temporary exclusion or cease and desist orders (akin to preliminary injunctions) are rarely granted due to high standards and the already short investigation timeline.

• Choosing Respondents Wisely: Complainants must carefully list all relevant parties across the supply chain (e.g., manufacturers, importers, resellers) to ensure effective coverage. Excluding critical players may reduce enforcement reach.

• Strong Evidentiary Preparation: Due to ITC’s stringent requirements, complaints are often pre-reviewed informally by OUII. A solid complaint includes claim charts, patent file histories, registration certificates, and domestic industry documentation.

III. Respondents’ Strategies to Defend Against Section 337

Respondents must rapidly mount a defense, addressing both substantive and procedural challenges.

1. Substantive Defenses

• Non-Infringement: Show that accused products do not practice the asserted IP (e.g., design-around in patents, no likelihood of confusion in trademarks, fair use in copyrights).

• Invalidity: Assert that the patent is invalid due to prior art or lack of novelty/non-obviousness. This may involve evidence to challenge patentability directly in the ITC or via USPTO post-grant proceedings (e.g., IPR).

• Unenforceability: Argue inequitable conduct during patent prosecution or misuse. For trademarks, show abandonment or fraud.

• No Domestic Industry: Challenge whether the complainant meets the domestic industry threshold—especially if it is a non-practicing entity.

• No Importation or Sales: Argue lack of U.S. import/sales activity. However, indirect importation may still support jurisdiction. The ITC has in rem jurisdiction over goods, not in personam over respondents.

2. Procedural Defenses

• Jurisdictional and Procedural Objections: Raise defects in the complaint or argue that the ITC lacks jurisdiction (e.g., digital transmissions or mandatory arbitration). ITC may terminate cases for “good cause.”

• Public Interest Objections: Argue that exclusion would harm U.S. public health or economy. Rarely successful but relevant in SEP/FRAND contexts.

• Delay or Accelerate Tactics:

  • Delay: Use discovery disputes, motion practice, or schedule negotiations.

  • Accelerate: Request a 100-day early disposition program for threshold issues (e.g., lack of domestic industry).

• Settlement or Design-Around: Evaluate business case for settlement, redesign products to avoid exclusion, or join forces with co-respondents to reduce cost. Defaulting is possible but risky if the U.S. market is important.

IV. ITC Filing Requirements and Procedures

ITC document submissions are highly formalized. Core filings include:

• Complaint: Detailed factual and legal allegations, identification of parties, description of unfair acts, import data, domestic industry info, relief sought, public interest statement, and supporting documentation.

• Answer: Due within 20–30 days; must address each claim and provide supporting data (import info, product specs, customs codes, etc.). Unraised defenses may be waived.

• Motions and Submissions: Include supporting briefs, evidence, and proof of service. Discovery responses and expert reports are not typically submitted unless contested.

• Evidence Submission: Documents are numbered and submitted in trial binders. Most documents are confidential; protective orders are common.

All filings are made via the Electronic Document Information System (EDIS), which requires account registration and compliance with formatting and deadline rules (5:15 p.m. ET is the daily cutoff). Confidential files are restricted. Hard copies are generally not required unless ordered.

Failure to comply may result in rejected filings or adverse procedural consequences.

V. Structure and Conduct of the Evidentiary Hearing

The ITC hearing is overseen by an ALJ and resembles a bench trial in federal court:

• Format: Hearings are usually held in-person at the ITC in Washington, D.C. and are transcribed. Confidential sessions are closed to the public. Remote testimony may be used in special cases (e.g., during the pandemic).

• No Jury: The ALJ acts as both factfinder and legal decision-maker. Judges often ask technical questions and expect focused responses.

• Witness Testimony: Includes fact and expert witnesses. Direct examination is often by written statement; cross-examination occurs in person under oath. The OUII attorney may also examine witnesses.

• Schedule and Duration: Set during the prehearing conference. Hearings typically last several days to two weeks, depending on complexity. ALJs may impose time limits to ensure efficiency.

• Post-Hearing Briefs: Parties and OUII submit post-hearing and reply briefs summarizing facts and legal arguments. The ALJ then issues the Initial Determination (ID).

If a violation is found, the ALJ also recommends remedies and bond rates. The ID becomes final if not reviewed by the Commission within 60 days. Otherwise, the Commission reviews and issues a Final Determination.

The President has 60 days to review and veto based on policy considerations—this rarely happens (e.g., the 2013 Apple v. Samsung case). If not vetoed, the exclusion order is enforced by U.S. Customs.

Conclusion

Section 337 investigations are fast, high-stakes, and procedurally rigorous. Their administrative nature ensures focused fact-finding and efficient adjudication. Mastery of ITC rules, strong evidentiary preparation, and experienced legal representation are critical to success.

Despite their complexity, 337 proceedings are a powerful tool for enforcing IP rights and resolving international trade disputes. Understanding the rules and procedures is essential for all parties to protect their interests effectively.

(Disclaimer: The information provided is for reference only and should not be construed as legal advice. All rights reserved. Reproduction requires permission from Allbelief Law Firm.)