Interpretation of Section 337 of the United States

□ Wen Xikai

In the United States, patentees have the right to prohibit others from producing their protected patented products in the United States and Its patented products are copied overseas and sold to the United States. There are two ways to prosecute this infringement: filing with the U.S. International Trade Commission using Section 337 of the U.S. Tariff Act of 1930 (hereinafter referred to as Section 337); filing with the federal district court. However, more and more American companies are using Section 337 not to prevent international infringement, but to prevent imports. As the international community pays increasing attention to the protection of intellectual property rights and Sino-U.S. trade continues to grow, Chinese manufacturers doing business in the United States must face up to the fact that they have been sued by U.S. companies to the U.S. International Trade Commission for unfair trade, and their goods have been banned by U.S. Customs Importing dangers. For this reason, intellectual property experts remind us to master the rules and prevent "337 disputes" from happening before they happen.

What is Section 337?

According to Section 337, the U.S. International Trade Commission has the right to refuse entry into the United States of all products that infringe on U.S. intellectual property rights. As a "quasi-judicial agency," the U.S. International Trade Commission protects U.S. companies from unfair competition by foreign companies. Once the U.S. International Trade Commission determines that there is unfair trade in an imported product, the U.S. company that has suffered unfair trade will request that the U.S. gates be closed to the goods.

Under Section 337, prosecutions that can be filed with the U.S. International Trade Commission generally include allegations of intellectual property infringement in imported goods. The ITC's remedies for the prevailing party may take the form of an exclusion order, which prohibits the import of a specific product, and a stop or denial order, which prohibits the importing party from entering. Both orders may also be issued at the same time. It can be seen that once the US rights holder wins the lawsuit, it will have a fatal blow to the importer.

Article 337 prohibits all unfair competition practices or any unfair practices in importing products to the United States. The so-called "unfair practices in import trade" refer to: "the owner of the goods, the importer , the consignee or its agent uses unfair competition methods and unfair practices when importing goods into the United States or selling them in the United States, the threat or effect of which is sufficient to destroy or substantially damage domestic industries in the United States, or hinder the establishment of such industries, or restrict the establishment of such industries , monopolizes trade and commerce in the United States, or imports goods into the United States, sells them for import into the United States, or sells them after being imported into the United States, and such goods infringe upon valid and enforceable patent rights or trademark rights registered in the United States, Copyright or exclusive rights to the layout design of integrated circuit chips, and these four rights already exist or are still being established."

This shows that the standard for measuring unfair practices is whether the import poses a threat or damage to the survival or development of an industry in the United States, such as hindering or restricting the formation of an industry, leading to the formation of a trade monopoly in the United States, etc. Section 337 is specifically designed to prohibit any products that infringe on U.S. intellectual property rights from entering the U.S. market, and prohibit any products produced abroad using valid U.S. patented methods from entering the U.S. market. This objectively gives U.S. intellectual property rights holders an advantage over foreign competitors, and obviously makes foreign competitors threatened or troubled by Section 337 lawsuits when entering the U.S. market, and must consider using expensive litigation procedures to protect their own interests. . The relief provided by Section 337 is also more direct than the relief available to litigants in domestic infringement litigation in the United States by filing suit in a U.S. district court. In addition, the administrative procedures faced by foreign companies in the U.S. International Trade Commission are more cumbersome than in U.S. district courts.

Commission’s Investigation

According to Section 337, whether import practices are unfair depends on the investigation of the U.S. International Trade Commission, which “shall, upon request or under its authority, investigate any allegation.” Upon the commencement of the investigation, the Commission shall publish a notice in the Federal Register and shall conclude the investigation and render a decision as soon as possible. In order to facilitate a speedy trial, the Commission shall finalize the investigation within 45 days of its commencement. Determined target day”. The entire process usually takes one year, and more complex cases can be extended for 6 months, but must also be completed within 18 months.

The U.S. International Trade Commission should promptly designate an administrative judge and transfer the Section 337 investigation to the judge. If the investigation results that a party has violated the provisions of Section 337, the Commission will issue an order prohibiting all infringing goods imported by the offending party from entering the United States. "Considering the impact of such exclusions on public health and welfare, competitive conditions in the U.S. economy, the production of similar or directly competitive products in the United States, and U.S. consumers," the Committee may decide that such items should not be excluded Enter the United States or choose not to take action.

In the event that goods are elected to be prohibited from entering the United States, the ITC's prohibition order shall be limited to all items found to be illegal and imported by the offending party. This is a "limited exclusion order" or " Limited Restraining Order". On the other hand, in order to avoid the one-sidedness of a limited exclusion order, or if the infringement is already known and the source of the goods is difficult to identify, the US International Trade Commission has the right to exclude all similar products regardless of the identity of the importing party. This has been Known as a "general exclusion order", or a "total restraining order". It prohibits all imported products of a certain category from entering the U.S. market without distinguishing between the country of origin or manufacturer and future manufacturers and importers that are not yet in control.

If during the investigation, the U.S. International Trade Commission believes that infringement is occurring, it has the power to issue a temporary exclusion order. However, as long as the importing party provides a guarantee in the amount specified by the U.S. International Trade Commission and fully protects the interests of the U.S. suing party from harm, the importing party's goods can still enter the U.S. market. In addition to exclusion orders, the ITC can issue orders requiring the offending party to cease and desist from engaging in unfair competition practices, and may also issue temporary cease and desist orders. Those who fail to comply with the order face civil penalties of approximately $100,000 or twice the domestic value of the products they import into the United States in violation of the order for each day.

The U.S. International Trade Commission can also issue orders to seize and confiscate products imported in violation of Section 337. The seizure and confiscation of a product only occurs if the right holder, the importing party or the custodian has previously attempted to import the product, the product has been refused import due to an exclusion order, and the importing party has been served with an exclusion order on a previous import and has been notified of it Products may be subject to seizure and confiscation.

Final decision

No matter what decision the U.S. International Trade Commission makes, it must ultimately be reviewed by the President of the United States. The President of the United States may overturn the decision of the U.S. International Trade Commission within 60 days after receiving the decision, and the decision will cease to be effective. If the President agrees with the U.S. International Trade Commission's order or does not deny the order within 60 days, the U.S. International Trade Commission's decision and order will become final, except for possible judicial review by the Appellate Division of the U.S. Federal Court.

In short, according to Section 337, as long as American companies can prove that imported products are illegal or infringe on intellectual property rights, and there are indeed related industries in the United States, they can apply to the International Trade Commission to file a case, which will restrain competitors. and limiting effects. For companies that are suing, since the investigation content usually involves intellectual property protection and professional technology, they often have to rely on lawyers and technical experts, which is a very heavy burden. Enterprises should try their best to conduct investigations and research related to intellectual property rights in advance to avoid falling into Section 337 disputes.

Interpretation of the U.S. Section 337

□ Wen Xikai

In the United States, people have the right to patent law to prohibit the production of others in the The United States protects its patent products and overseas patent imitation of its products to the United States. There are two ways to prosecute such violations: The 1930 U.S. tariff law Article 337 (hereinafter referred to Article 337) to the U.S. International Trade Commission; to the federal district court. But more and more U.S. companies are not using 337 for the prevention of international infringement, but in order to prevent the imports. As the international community to protect intellectual property rights and the increasing emphasis on sustained growth of Sino-US trade in the United States operating in China must face up to its manufacturers an unfair trade for U.S. companies have been prosecuted to the U.S. International Trade Commission, the goods prohibited by the U.S. Customs The risk of imports. To that end, intellectual property experts advise, it is necessary to have rules, anti-"337 disputes" in Weiran.

What is Section 337

Under section 337, the U.S. International Trade Commission the right to reject all violations of U.S. intellectual property products into the United States. As a "quasi-judicial body," the U.S. International Trade Commission to protect U.S. companies from foreig

n companies, the role of unfair competition. Once the U.S. International Trade Commission that imports of goods there is a fair trade, unfair trade, U.S. companies will be put to it by the United States the country should close the request of the goods.

Under section 337 may be directed to the U.S. International Trade Commission instituted the prosecution of the general existence of imports of goods, including allegations of violations of intellectual property rights. The U.S. International Trade Commission Sheng Sufang relief in the form of exclusion orders - of a certain product import ban and stop or refuse to - banned the import side access, can also issued two orders. Thus, if the United States won the right people, the importer will have a fatal blow.

Section 337 is prohibited by all acts of unfair competition or imported products to the United States in any unfair act, the so-called "import of unfair trade practices" means: "all goods, the importer, the consignee or his agent Imports of goods will be sold in the United States or the United States the use of unfair methods of competition and unfair acts, the threat or effect to destroy or damage the U.S. domestic industry in real terms, or hinder the establishment of such industries, or limit, a monopoly of the U.S. trade and Commercial, or imports of goods the United States, or imports for the United States a

nd sales, or sales of imports after the United States, and the kinds of violations of the United States has been registered valid, enforceable patent, trademark, copyright or integrated circuit chip layout Proprietary design, and in this four rights has been established there, or is still. "

This shows that the practice is unfair to measure the standard is whether the import of a certain U.S. industries pose a threat to the survival or development or damage to, for example, prevent or curb the formation of a certain industry, resulting in the formation of the U.S. trade monopolies. Article 337 specifically for the prohibition of any violations of U.S. intellectual property products into the U.S. market, to prohibit any use of overseas production of an effective U.S. patent products into the U.S. market. This objective in the United States on intellectual property rights than foreign competitors a better position, obviously to foreign competitors in entering the U.S. market, subject to section 337 of the threat of litigation or distress, but must consider the use of expensive procedures to safeguard its interests. Section 337 provides relief infringement litigants than the United States to the United States District Court for prosecution can also be a relief more directly. In addition, foreign companies in the United States International Trade Commission in the face of th

e administrative procedures than in the United States District Court for a more cumbersome.

Commission of Inquiry

Under section 337, imports of whether unfair practices on the U.S. International Trade Commission's investigation, " or should be, if so requested, according to the terms of reference to any alleged offense under investigation. In the investigation began, the Committee should be in the Federal Register this Book on the announcement, and should be concluded as soon as possible to investigate and make a decision. In order to facilitate speedy trial, the Committee should be the start of the investigation within 45 days, to determine its final decision on the target. " The whole process usually takes a year, more complicated cases can be delayed six months ended, but must also be completed within 18 months.

The U.S. International Trade Commission administrative judge should be designated a timely manner, and 337 investigations of judges presided over by the transfer. If the findings of the parties is a violation of the provisions of section 337, the Commission will issue an order to prohibit the illegal importation from all infringing goods entering the United States. "Taking into account this exclusion of public health and welfare of the U.S. economy in the conditions of competition , similar or directly competitive products in the United States, produce

tion, the impact on U.S. consumers", the Commission should not rule out the possibility that if such goods into the U.S., Also may choose not to take action.

In the choice of prohibited goods entering the United States circumstances, the U.S. International Trade Commission of the prohibition order should be limited to the offence was discovered by the illegal importation of all goods, which is "limited exclusion order" or "limited prohibition order." On the other hand, the limited exclusion order to avoid one-sidedness, or if the violations have to understand, but difficult to identify the source of goods, the U.S. International Trade Commission has the right to import, regardless of the identity of all similar products will be excluded, which was Known as the "general rule out", or "total prohibition order." It prohibits certain types of all imported products into the U.S. market, without distinction of origin or production and has not yet grasp the future of manufacturers and importers.

If the survey was conducted between the U.S. International Trade Commission that violations are taking place, the power to issue temporary exclusion orders. But as long as the imports by the U.S. International Trade Commission the amount specified in the provision of security and full protection of the interests of the United States prosecution from harm, the importer of the goods

can enter the U.S. market. In addition to the exclusion, the U.S. International Trade Commission may issue an order to stop the illegal and no longer engage in acts of unfair competition, may stop or refuse to issue interim orders. Does not comply with the order will face about 100,000 U.S. dollars or the equivalent of the daily breach of its products enter the United States twice the value of the domestic civil penalties.

The U.S. International Trade Commission also issued an order, the breach of section 337 provisions of imported products seized and confiscated. Seizure and Confiscation of products only in the right people, the importer or the custodian had previously tried to enter the product, the product was refused due to the exclusion of imports, but imports in the previous imports had been served and has been ruled out so that informed Products are likely to be seizure and confiscation of the situation.

Final decision

Whether the United States International Trade Commission made the decision to end the trial by the President of the United States. President of the United States received a decision within 60 days after denying the U.S. International Trade Commission's decision, the decision to cease to be valid. If the president agreed with the U.S. International Trade Commission's order, or within 60 days does not deny the order, with the exception of

the United States Federal Court may accept the judicial review the Court of Appeal, the U.S. International Trade Commission's decision and order has become final.

In short, under Section 337, U.S. companies can prove that as long as the imported products have breached the law or the fact that the infringement of intellectual property rights, and the United States do have the relevant industries can file applications for International Trade Commission, the rivals played to contain and limit the role. Of the enterprises involved in speaking , usually because of investigation involving intellectual property protection and expertise, often must rely on lawyers and technical experts, the burden is very heavy. Enterprises should do a good job as far as possible in advance related to intellectual property rights investigations and studies, to avoid disputes themselves into 337 articles.