Summary of § 337 Actions
Section 337 actions begin when a party—referred to as the “complainant”—files a complaint with the International Trade Commission (ITC) identifying the type of unfair trade practice alleged (e.g., patent infringement), the accused imported product, and the parties who import it. In response to a complaint, the Commissioners will vote on whether to institute an investigation, and will serve notice on the parties accused of importing the products—referred to as the “respondents”—who have twenty days to respond to the claim. The complaint must be accompanied with certain specified documents and include the specific facts of the alleged unfair trade practice.
Complainants must establish the traditional elements of an infringement case, and the rules and defenses for that aspect of the case are generally similar to a case filed in federal court. To invoke the ITC’s special jurisdiction, the complainant must also show “importation” of the accused product, and a “domestic industry” related to that product. But because proceedings are directed toward property, the complainant does not need to establish personal jurisdiction over any party. The complainant can establish “importation” by proving either actual importation or a sale for the product to be imported. To satisfy the “domestic industry” requirement, the complainant must show that U.S. industry is actually exploiting the protected intellectual property to a degree sufficient to warrant ITC protection.
After the ITC votes to institute an investigation, the case will be assigned to an administrative law judge (ALJ), who will create a procedural schedule and issue a set of “Ground Rules” that will govern the proceeding. A hearing is held that typically lasts one or two weeks and is similar to a trial in a federal district court. But, unlike a district court case, the ITC’s staff attorneys participate as a third party arguing for the public interest. ITC rules require investigations to be conducted “expeditiously,” so they are usually completed within fifteen months.
If the complainant prevails in the case, the ITC can issue “exclusion orders,” which block the infringing product from being imported into the country. The ITC will issue either a “limited exclusion order,” which only applies to the named respondent in the case, or a “general exclusion order,” which applies to any party. Or the ITC may issue a cease and desist order, prohibiting the respondent from both importing the accused product and selling products that have already been imported. Because the ITC requires additional evidence to warrant a general exclusion order, limited exclusion orders are the most common form of relief. A cease and desist order will be issued if a particular party has already accumulated a significant stock of imported infringing products. Because a Section 337 case is technically a government investigation, any settlement by the parties must be approved by the Commission.
A decision by the ALJ will consist of an “Initial Determination” on the merits of the claim and a “Recommended Determination” of the proposed relief. These determinations must be adopted by the Commissioners to become the ITC’s “Final Determination.” Section 337 decisions are subject to review by the President, who is empowered to disapprove of any decision on policy grounds. In addition, ITC decisions—but not Presidential disapprovals—can be appealed to the U.S. Court of Appeals for the Federal Circuit, the same appeals court for all district court patent infringement cases.
