□ Wen

In the United States, the patentee has the right to prohibit others from producing their protected patented products in the United States and copying their patented products overseas and selling them to the United States. There are two ways to prosecute this infringement: to file a complaint with the US International Trade Commission by using Article 337 of the US Tariff Law 1930 (hereinafter referred to as Article 337); Federal District Court. But more and more American enterprises use Section 337 not to prevent international infringement, but to prevent imports. With the international community paying more and more attention to the protection of intellectual property rights and the continuous growth of Sino-US trade, China producers doing business in the United States must face the danger of being sued by American companies to the US International Trade Commission for unfair trade and their goods being banned from import by the US Customs. To this end, intellectual property experts reminded that it is necessary to master the rules and prevent problems before they happen.

What is Section 337?

According to Section 337, the US International Trade Commission has the right to refuse all products that infringe US intellectual property rights to enter the United States. As a quasi-judicial institution, the United States International Trade Commission plays a role in protecting American companies from unfair competition from foreign companies. Once the US International Trade Commission determines that there is unfair trade in an imported commodity, American companies suffering from unfair trade will ask the United States to close the commodity.

According to Article 337, the lawsuits that can be brought to the United States International Trade Commission usually include allegations of infringement of intellectual property rights by imported goods. The remedies of the US International Trade Commission to the winning party include exclusion orders-prohibiting the import of a specific product, and stop or refuse orders-prohibiting the importer from entering, or issuing two orders at the same time. It can be seen that once the American obligee wins the case, it will cause a fatal blow to the importer.

Article 337 prohibits all unfair competition or any unfair act of importing products into the United States. The so-called "unfair practices in import trade" refers to: "The owner, importer, consignee or their agents use unfair competition methods and unfair behaviors when importing goods into the United States or selling them in the United States, and their threat or influence is enough to destroy or substantially damage domestic industries in the United States or hinder the establishment of such industries. Or restrict or monopolize trade and commerce in the United States, or import goods into the United States, or sell them for import into the United States, or sell them after import into the United States, and these goods infringe on the valid and enforceable patent right, trademark right, copyright or exclusive right of integrated circuit chip layout-design registered in the United States, and these four rights already exist or are still being established. "

This shows that the standard to measure unfair practices is whether imports pose a threat or damage to the survival or development of an American industry, such as hindering or containing the formation of an industry, leading to the formation of a trade monopoly in the United States. Section 337 is especially used to prohibit any product that infringes the intellectual property rights of the United States from entering the American market, and to prohibit any product produced abroad by effective American patent methods from entering the American market. This objectively gives American intellectual property rights holders an advantage over foreign competitors, and obviously makes foreign competitors threatened or troubled by Section 337 litigation when they enter the American market. Therefore, we must consider using expensive litigation procedures to safeguard their own interests. The remedy provided by article 337 is also more direct than the remedy that the parties to domestic tort litigation can get when they file a lawsuit in the U.S. District Court. In addition, the administrative procedures faced by foreign companies in the US International Trade Commission are more complicated than those in the US District Court.

Commission's investigation

According to Section 337, whether the import behavior is unfair depends on the investigation of the United States International Trade Commission, which "shall investigate any alleged illegal behavior upon request or according to its authority. After the investigation begins, the Committee shall publish a notice in the Federal Gazette, and shall end the investigation and make a decision as soon as possible. In order to facilitate a speedy trial, the Committee should set a target date for its final decision within 45 days after the investigation begins. " The whole procedure usually takes one year, and the more complicated cases can be extended for six months, but it must also be completed within 18 months.

The United States International Trade Commission should promptly appoint an administrative judge and hand over the 337 investigation to the judge. If the result of the investigation is that the party has violated the provisions of Section 337, the Committee will issue an order prohibiting all infringing goods imported by illegal parties from entering the United States. "Considering the impact of this exclusion on public health and welfare, the competitive conditions in the American economy, the production of similar or directly competitive products in the United States, and American consumers," if the Committee believes that this commodity should not be excluded from the United States, it may choose not to take action.

In the case of choosing to prohibit goods from entering the United States, the prohibition order of the United States International Trade Commission should be limited to all goods that are deemed illegal and imported by illegal parties. This is a "limited exclusion order" or "limited prohibition order". On the other hand, in order to avoid the one-sidedness of the limited exclusion order, or if the infringement is known and it is difficult to determine the source of the goods, the US International Trade Commission has the right to exclude all similar products, regardless of the identity of the importer. This is called a "general exclusion order" or a "general prohibition order". It prohibits all imported products of a certain category from entering the American market, and does not distinguish between origin or producers and unknown future producers and importers.

If, during the investigation, the US International Trade Commission believes that infringement is taking place, it has the right to issue a temporary exclusion order. However, as long as the importer provides a guarantee in accordance with the amount stipulated by the US International Trade Commission and fully protects the interests of the US prosecutor from damage, the importer's goods can still enter the US market. In addition to the exclusion order, the US International Trade Commission can also issue an order requiring violators to stop and engage in unfair competition, or issue a temporary stop or refusal order. Failure to comply with the order will face a civil fine of about $654.38 million, or twice the domestic value of the products it illegally imports into the United States every day.

The US International Trade Commission can also issue orders to seize and confiscate products imported in violation of Section 337. The product will be seized and confiscated only if the obligee, importer or custodian has tried to import the product before, and the product has been refused to import because of the import prohibition order, and the importer has received the import prohibition order at the last import and was told that his product may be seized and confiscated.

final decision

No matter what decision the US International Trade Commission makes, it must be finally reviewed by the President of the United States. If the President of the United States can reject the decision of the United States International Trade Commission within 60 days after receiving the decision, the decision will no longer be valid. If the president agrees with the order of the US International Trade Commission, or does not deny the order within 60 days, the decision and order of the US International Trade Commission will become final, except for the possibility of judicial review by the Appeals Chamber of the US Federal Court.

In short, according to Section 337, as long as American enterprises can prove that imported products violate the law or infringe intellectual property rights, and related industries do exist in the United States, they can apply to the International Trade Commission for filing a case to curb and restrict competitors. For responding enterprises, because the investigation usually involves intellectual property protection and professional technology, they often rely on lawyers and technical experts, which is a heavy burden. Enterprises should do a good job in the investigation and research related to intellectual property rights in advance, and try to avoid falling into Article 337 disputes.

Interpretation of Article 337 of the United States

□ Wen

In the United States, people have the right to prohibit others from producing products protected by their patents in the United States and overseas patent imitations of their products to the United States according to the patent law. There are two ways to prosecute such illegal acts: 1930 Section 337 of the US Tariff Law (hereinafter referred to as Section 337) brings a lawsuit to the US International Trade Commission; Federal District Court. But more and more American companies use Section 337 not to prevent international infringement, but to prevent imports. With the international community paying more and more attention to the protection of intellectual property rights and the continuous growth of Sino-US trade, American manufacturers operating in China must face up to the unfair trade with them. American companies have sued the US International Trade Commission, and the goods are prohibited from being imported by the US Customs. To this end, intellectual property experts reminded that it is necessary to formulate rules to counter the "337 dispute" in Wei Ran.

What is Article 337?

According to Section 337, the US International Trade Commission has the right to refuse all products that infringe US intellectual property rights to enter the United States. As a quasi-judicial institution, the United States International Trade Commission protects American companies from unfair competition from foreign companies. Once the US International Trade Commission thinks that there is fair trade and unfair trade in imported goods, American companies will ask it that the United States should close the goods.

According to section 337, you can directly file a lawsuit against imported goods, including allegations of infringement of intellectual property rights, with the US International Trade Commission. Sheng Sufang's remedy of the United States International Trade Commission is in the form of exclusive orders-prohibiting and stopping or refusing the import of a certain product-prohibiting the importer from entering, or issuing two orders. Therefore, if the United States wins the right person, the importer will have a fatal blow.

Article 337 prohibits all unfair competition acts or any unfair acts in importing products to the United States. The so-called "unfair trade acts of importing" means: "All importers, consignees or their agents sell imported goods in the United States or use unfair competition methods and unfair acts in the United States, threatening or affecting the destruction or damage of the essence of domestic industries in the United States, or hindering the establishment of such industries, or restricting or monopolizing American trade and commerce. Or importing goods from the United States, or importing and selling them for the United States, or selling them to the United States after import, and infringing on the registered valid and executable patents, trademarks, copyrights or proprietary designs of integrated circuit chips in the United States, and they have existed or still exist in these four rights. "

This shows that the standard to measure unfair practices is whether imports pose a threat or damage to the survival or development of an American industry, for example, preventing or inhibiting the formation of an industry, thus leading to the formation of a trade monopoly in the United States. Article 337 specifically prohibits any product that infringes US intellectual property rights from entering the US market, and prohibits any product that uses valid US patents produced overseas from entering the US market. This is objectively in a more favorable position than foreign competitors in intellectual property rights in the United States. Obviously, foreign competitors will be threatened by Section 337 litigation or seizure when they enter the American market, but they must consider using expensive procedures to safeguard their interests. The remedy provided for in Article 337 can get more direct relief than if the litigants of tort litigation in various states in the United States bring a lawsuit in the U.S. District Court. In addition, the administrative procedures faced by foreign companies in the US International Trade Commission are more complicated than those in the US District Court.

investigation committee

According to Section 337, the US International Trade Commission investigates whether there are unfair practices in imported goods. "Or, if someone asks, it should investigate any alleged illegal acts according to its terms of reference. At the beginning of the investigation, the Committee shall make an announcement in the book Federal Register, and shall end the investigation and make a decision as soon as possible. In order to facilitate a speedy trial, the Committee should determine the goal of its final decision within 45 days from the beginning of the investigation. " The whole process usually takes one year, and more complicated cases can be postponed for six months, but they must also be completed within 18 months.

The United States International Trade Commission should appoint an administrative judge in time and hand over the 337 investigation to the presiding judge. If the ruling of both parties violates the provisions of Section 337, the Committee will issue an order prohibiting all infringing goods from being illegally imported into the United States. "Considering the impact on American consumers of products that are similar or directly competitive under competitive conditions in the American economy that excludes public health and welfare," the Committee should not rule out this possibility, and may choose not to take action if such goods enter the United States.

In the case of choosing prohibited goods to enter the United States, the prohibition order of the United States International Trade Commission should be limited to all goods found to be illegally imported, that is, a limited exclusion order or a limited prohibition order. On the other hand, in order to avoid a one-sided limited exclusion order, or if the infringement is known, but it is difficult to determine the source of the goods, the United States International Trade Commission has the right to import, regardless of the identity of all similar products, which is called a "general exclusion". Or "total prohibition order", which prohibits all imported products of certain types from entering the American market, regardless of origin or place of production, and has not yet grasped the future of manufacturers and importers.

If the investigation is conducted in the case that the US International Trade Commission believes that a violation is taking place, it has the right to issue a temporary exclusion order. However, as long as the quantity stipulated in the import clause of the US International Trade Commission is safe and the interests of American prosecution are fully protected from damage, importers' goods can enter the US market. In addition, the United States International Trade Commission can issue an order to stop illegal and no longer engage in unfair competition, and can stop or refuse to issue an interim order. Failure to comply with the order will face a daily default value of about100,000 US dollars or twice the domestic civil penalty for its products entering the United States.

The United States International Trade Commission also issued an order to seal up and confiscate imported products that violated Section 337. Seizure and confiscation of products is only when the obligee, importer or custodian tried to enter the product before, and the product was rejected because it was excluded from import, but the importer was served in the previous import and was excluded, thus making it possible for the informed product to be seized and confiscated.

final decision

Whether the US International Trade Commission decided to end the trial by the President of the United States. The President of the United States rejected the decision of the United States International Trade Commission within 60 days after receiving the decision, and the decision ceased to be valid. If the president agrees to the order of the US International Trade Commission, or does not deny the order within 60 days, the decision and order of the US International Trade Commission will become final except that the US federal court may accept judicial review by the Court of Appeal.

In short, according to Section 337, American companies can prove that as long as the imported products violate the law or infringe intellectual property rights, and there are indeed related industries in the United States that can apply to the International Trade Commission, it has played a role in curbing and restricting competitors. For the enterprises involved, because the investigation usually involves intellectual property protection and professional knowledge, they often have to rely on lawyers and technical experts, which is a heavy burden. Enterprises should do a good job in relevant intellectual property investigation and research as far as possible in advance to avoid falling into Article 337 disputes.