Section 337 Unfair Trade-IP Infringement
We offer a unique Section 337 trade practice in which we partner with patent holders, investors, fund advisors and patent litigators to file, monitor, opine upon and assist in litigating complaints before the U.S. International Trade Commission (ITC) in Washington, D.C.
Under Section 337 of the Tariff Act of 1930 (19 U.S.C. § 1337), the ITC conducts investigations into allegations of certain unfair practices in import trade. Section 337 declares the infringement of certain statutory intellectual property rights and other forms of unfair competition in import trade to be unlawful practices. Most Section 337 investigations involve allegations of patent or registered trademark infringement. Other forms of unfair competition – such as misappropriation of trade secrets, trade dress infringement, false advertising and violations of the antitrust laws – may also be asserted.
Corporations and individuals are increasingly seeking relief from the ITC when they believe their intellectual property rights are being infringed by imported products. Section 337 filings before the ITC have skyrocketed in the past decade, going from 17 filings in 2002 to 69 filings in 2011. Section 337 investigations typically move much more rapidly than complaints filed against infringers in federal district courts. Section 337 cases are usually completed within 12 to 16 months; a similar case in federal district court often requires two to three years. In addition, Section 337 cases are handled and argued before an administrative law judge (ALJ) well-versed in patent law and technology. Upon a successful conclusion to an investigation, the law authorizes the ITC to exclude all infringing products from entry into the United States and to prohibit the sale of those that have already entered.
Our lawyers and trade specialists have experience with the entire range of unfair statutory rights covered by Section 337, including patent infringement, trademark and counterfeiting, copyright infringement, trade dress and trade secret misappropriation, and false labeling. Our lead ITC practitioner in this area, Charles A. Hunnicutt, was legal adviser to the Chair of the ITC from 1980 to 1987. In addition, the team includes experienced intellectual property lawyers with advanced engineering and science degrees.
We understand how the ITC operates and how to effectively manage a case. Understanding the agency’s practices and interpretations of its rules is fundamental to success in cases brought to the ITC. Our practitioners are intimately familiar with the ITC’s unique requirements, procedural complexities, tight deadlines, how to best present technologically complicated cases to the ALJ, and the many other demands of Section 337 investigations. This ITC experience is essential in assisting clients throughout a Section 337 investigation.
 Section 337 specifically declares the infringement of the following statutory rights to be unlawful import practices: a U.S. patent or a U.S. copyright registered under Title 17, a registered trademark, a mask work registered under chapter 9 of Title 17, or a boat hull design protected under chapter 13 of Title 17. 19 U.S.C. § 1337(a)(1)(B)-(E). In cases involving infringement of these intellectual property rights, there is no injury requirement.
 In addition to unfair practices based upon infringement of certain specified statutory intellectual property rights, Section 337 also declares unlawful unfair methods of competition and unfair acts in the importation and sale of products in the United States, the threat or effect of which is to destroy or substantially injure a domestic industry, prevent the establishment of such an industry, or restrain or monopolize trade and commerce in the United States. Thus, in these types of investigations, threatened or actual injury must be shown.