First, the development process of "Article 337"
"Section 337" is the abbreviation of Section 337 of US Tariff Law 1930, which is now compiled in Section 1337 of US Code (U.S.C). The predecessor of "Article 337" is "Article 3 16" of 1922 Customs Tax Law, which stipulates: "If unfair competition methods and unfair behaviors are found in import trade, the Customs Committee shall report such situations to the President. The president has the right to raise tariffs on related products or prohibit these products from entering the US market. " In order to strengthen the protection of intellectual property rights in the import trade of the United States, on this basis, the US Congress has formulated "Article 337" in 1930. Later, this clause became one of the important trade protection measures in the United States.
The development of Section 337 can be divided into four stages:
1.1922 ~1930, forming stage. During this period, the Customs Committee made four affirmative rulings, ruling that foreign countries' imitation of American goods, counterfeiting of American trademarks and infringement of American patents were "unfair competition methods or improper acts".
2. 1930 ~ 1935, stable effective stage. This period is five years after the first entry into force of Article 337, and the decisions of the Customs Committee mainly focus on patent cases. During this period, the US Customs and the Patent Appeals Court continued to support the decision of the Tariff Commission; As long as the Customs Committee makes a recommendation, the president will habitually issue an order prohibiting a certain product from entering the United States.
3. 1936 ~ 1968, inaction stage. This law has hardly been used at this stage. At first, the Customs Committee did not actually enforce this law. Later, the president refused to issue an injunction even if the Customs Committee proposed a motion.
4. 1968 is in the stage of revival. 1968, an American patent holder complained to the Customs Committee that a drug entered the American market without permission. On the recommendation of the Customs Committee, the President issued a temporary ban. Subsequently, three more cases were granted restraining orders. This is the first time since 1936 that the Customs Committee has taken action under this law. At this stage, clause 337 was revised five times in 1974, 1976, 1979, 1988 and 1994 respectively.
Second, the content analysis of "Article 337"
(a) the main content and legislative purpose
The main content of "Article 337" is: "If there are unfair competition methods or unfair practices in any import behavior (mainly referring to the infringement of American intellectual property rights such as copyright, patent right, trademark right and utility model design right), which may inhibit American industry, the US International Trade Commission may conduct an investigation under the application of American domestic enterprises."
The legislative purpose of "Section 337" of US tariff law is to prevent American industries from being harmed by unfair competition of imported products, especially in intellectual property rights.
(B) the application of "Article 337" substantive elements
1. Objects of legal protection: patents, registered trademarks, copyrights and mask works.
1988 after the revision of the trade law, at present, the issue of intellectual property rights is regulated by several separate subsections in article 337 (subsection of intellectual property rights). According to the provisions of these sub-paragraphs, it is illegal to import, sell for the purpose of import or sell these goods after import if they infringe patents, registered trademarks, copyrights and mask works in the United States, and industries protected by these patents, registered trademarks, copyrights and mask works exist in the United States, or these industries are being established.
2. The subjects of these unfair competition methods or unfair behaviors include not only the consignor, importer or underwriter, but also the agents of the above subjects.
3. There are related American industries
There are three main criteria to judge whether there is a related American industry: a considerable amount of investment in factories and equipment; Used a considerable amount of labor and funds; Or invest considerable money in the use (including engineering, research and development) or licensing of intellectual property rights. From a practical point of view, "Section 337" has a low threshold for the existence of relevant American industries.
4. There is unfair competition or unfair practices.
These unfair competition methods or unfair practices are mainly acts that violate American patent law, trademark law and other relevant intellectual property laws and norms.
5. Damage or threat of damage to related industries or trade in the United States.
Specifically, these damages or threats are mainly manifested in: destroying or actually damaging American industries; Prevent the establishment of this industry; Restrict or monopolize American trade and commerce.
Three. Compliance analysis of article 337
(A) the history of the dispute over Article 337 of GATT
Canada's complaint against GATT 1. 198 1
198 1, Canada lodged a complaint with the General Agreement on Tariffs and Trade on "Section 337" of the United States, alleging that "Section 337" violated the principle of national treatment. The GATT expert group believes that "Article 337" does violate the national treatment principle of GATT, but it does not violate GATT, because it is a "necessary" measure to comply with the laws or regulations on patent protection and conforms to the exception of Article 20 (d) of GATT. This measure is "necessary" because the civil litigation in the U.S. Federal District Court cannot provide sufficient and effective protection for the patentee. The expert group believes that under the existing American legal system, the most feasible way to effectively protect patent owners' exclusive right to use their patents in the United States is to resort to the "Section 337" general exclusion order procedure.
2. 1988 Europe * * * Litigation initiated by the same institution
As the consultations between the European Union and the United States have not achieved satisfactory results, the European Union has requested the establishment of an expert group. Finally, the expert group believes that according to Section 337, imported products enjoy lower treatment in the United States than domestic products. Therefore, Article 337 violates the principle of national treatment and does not apply to the exception of Article 20 of GATT.
After the report of the GATT expert group was published, there was a heated debate in the United States about what measures the United States should take to deal with the report. Finally, after the game of various interest groups, the United States made the following amendments to Article 337 according to the Uruguay Round Agreement Law: the investigation should be completed in the shortest time; If the defendant of the federal district court is also the respondent of the "337 investigation", the federal district court shall issue an order to suspend the trial of the same disputed case at the defendant's motion; The International Trade Commission can only issue general exclusion orders under certain circumstances; The respondent is allowed to file a counterclaim. Once a counterclaim is filed, it shall be immediately handed over to the local court.
(b) Article 337 does not conform to the provisions of GATT and the World Trade Organization.
Although Section 337 was amended, it did not quell the opposition of American trading partners. Among them, the focus of the dispute is whether Article 337 conforms to the introduction of Article III, paragraph 4 (national treatment), Article XX (prohibition of arbitrary or unreasonable discrimination) and Article XX (d) of GATT (whether these investigations are "necessary"). Theoretically, the provisions of Article 337 of the US Customs Tax Law 1930 do not conform to the relevant principles of WTO, because:
(1) The "337 Investigation" discriminates against imported products in practice, which is manifested in two aspects: First, once a certain commodity is ruled to be generally banned, all imported goods that meet the characteristics will be universally applied, regardless of the origin or manufacturer, even the unknown producers and importers at present, which is different from the practice of linking the punishment of infringing products with specific infringers in domestic civil litigation; Second, some "337 investigations" did not specify the enterprises under investigation, but only indicated the country of origin of the products under investigation, which in fact deprived the foreign enterprises involved of the opportunity to respond to the lawsuit and harmed the interests of the enterprises involved.
(2) In 1989, the GATT expert group ruled that the provisions of "Article 337" of the US Customs Tax Law1930 and the investigation practice of "Article 337" did not conform to the provisions of Article 3, paragraph 4, of GATT on the national treatment of imported goods in the application of domestic laws and the general exception of Article 20 (d). Later, although the "Article 337" was revised, it was still inconsistent with the relevant provisions of GATT to a considerable extent.
Fourth, the influence of "Article 337" on China.
(A) the status quo of the "337 investigation" in China.
From1986,65438+February 29th, the United States launched the first "337 investigation" against China, and it was not until 1993 that it launched the second investigation, which has increased year by year since then. After 2002, China became the country that suffered the most "337 investigations", and as of August 2006, there were 55 cases involved. Among them, there are cases of directly suing China's export enterprises, and there are also cases in which China is the investigated country of origin.
Of the 55 investigations in China, 47 were based on patent infringement, 5 were based on trademark infringement, 1 was * * *, 1 was trademark infringement and patent infringement, * * * was trademark infringement and copyright infringement, and 1 was trade dress.
(B) "337 investigation" on the impact of Chinese enterprises
1."337 investigation" poses a threat to China's product export. With the continuous adjustment and upgrading of China's export structure, this threat will become more and more serious. The industries involved in the "337 Survey" are relatively concentrated, mainly high-end industries with high technology content, high added value and gradually expanding market share in the United States. These industries include electronics, chemistry, light industry, machinery, automobiles and leather. So far, there are 30 cases involving China's electronics industry in the "337 investigation" in the United States, accounting for about 54% of the total number of cases investigated; There are 1 1 pieces involved in the chemical industry, accounting for 20%; 8 cases involving light industry, accounting for15%; 3 cases involving machinery industry, accounting for 5%; 2 cases involving the automobile industry, accounting for 4%; There are/kloc-0 pieces involved in leather industry, accounting for 2%.
2. Affect peers and upstream and downstream products, have an impact on the whole industry, and cause huge losses to enterprises directly involved. The "337 investigation" of property jurisdiction enables American intellectual property rights holders to target all parties related to production, sales and services. Once the general exclusion order is ruled by the International Trade Commission, even the products that are not included in the litigation list may fall into the scope of import prohibition and lose the American market as long as they are directly or indirectly exported to the United States.
3. The reasons for prosecution are constantly expanding, and enterprises can't prevent it. Most of the reasons for China's "337 investigation" are based on patent rights. However, the existing cases show that trademarks, copyrights, trade secrets and even trade dress have become the reasons for the "337 investigation", and China enterprises are facing more severe challenges.
4. The threshold for responding to lawsuits is high, and many enterprises give up responding to lawsuits. The "337 Investigation" involves professional issues, and China enterprises are not aware of intellectual property protection and lack relevant experience, so in many cases, it is difficult for China enterprises to make timely and effective responses. In addition, the expensive lawyer's fees and expert's fees required to handle the investigation are also unbearable for China enterprises. Therefore, many enterprises in China often respond negatively when encountering the "337 investigation", resulting in losing the case and losing the American market.