According to the law, Section 337 regulates unfair trade in general and unfair trade related to intellectual property rights.
There are two legal requirements for unfair trade: (1) There are related industries in the United States, or industries are being established; (2) Damage to a certain extent, that is, damage or substantial damage to related industries in the United States, or prevent the establishment of related industries in the United States, or suppress and manipulate American commerce and trade. The legal elements of unfair trade in intellectual property rights also include two aspects: (1) the imported products infringe the exclusive rights of patents, copyrights and trademarks in the United States; (2) There are related industries or related industries under construction in the United States.
The above are the substantive law provisions of Article 337, and the procedural law provisions of Article 337 are introduced in detail below.
First, filing procedures
complain
The US International Trade Commission initiated a 337 investigation based on the complainant's application, or it can initiate a 337 investigation based on the factual evidence it has. Most cases are triggered by the complainant's application. The law requires the complainant to prove that the accused product violates Article 337 of the United States, and to swear the contents stated in his complaint.
The contents of the complaint submitted by the complainant include: factual statements, evidence, requests, applicable laws and regulations, etc. The statement of facts includes: the name and address of the defendant, the facts and reasons stated, and relevant evidence. If intellectual property rights are involved, intellectual property information must be provided. Description of the complainant's intellectual property rights, description of the products involved, details of the exporters and American distributors of the products involved, etc. Evidence includes evidence of infringement or violation of fair trade. The claim includes what protective measures the complainant applied to the US International Trade Commission. The procedure of evidence submission and hearing is stipulated by the implementing rules, procedural provisions and administrative law of the United States International Trade Commission (except for individual cases, the evidence provisions of the federal court are usually applied).
(2) Rejecting the application and withdrawing the application.
1. Reject the application
Under normal circumstances, the United States International Trade Commission will accept the application submitted by the complainant, and it is rare to refuse to accept it. To be prudent, the complainant can also consult the unfair import office under the US International Trade Commission before submitting the complaint, and the complaint will be pre-examined. If the US International Trade Commission decides not to accept the complaint, the complainant can also amend the complaint and file a lawsuit. If it is ultimately rejected, the complainant can appeal to the United States Court of Appeals for the Federal Circuit. When the US International Trade Commission rejects the complainant's application, it shall notify all complainants and the respondent's reasons for not filing the case in writing.
2. Withdraw the application
The complainant can withdraw the application in an appropriate way before the US International Trade Commission votes on whether to file a case. If he applies for a temporary injunction, he should also withdraw his application for a temporary injunction.
(3) Accepting applications
The US International Trade Commission usually decides whether to file a case within 30 days after receiving the complainant's application. If the complainant submits an application for issuing a temporary injunction at the same time as the complaint, the US International Trade Commission will decide whether to file a case within 35 days after receiving the complainant's application. The complainant may also apply to the US International Trade Commission for an extension of filing.
After the International Trade Commission decides to file a case, it will publish a notice of filing in the Federal Gazette, and send a copy of the complaint and the notice of filing to the defendant and the commercial office of the defendant's embassy in the United States. At the same time, complaints should also be sent to the US Department of Health and Human Rights Services, the US Department of Justice, the US Federal Trade Commission, the US Customs and other relevant agencies or departments deemed by the US International Trade Commission.
The International Trade Commission will appoint an administrative judge to investigate the case. In addition, considering the public interest, the US International Trade Commission will also appoint a government lawyer to represent the public interest. Within 45 days after the case is filed, the US International Trade Commission sets the target date for ending the investigation: generally, it is 12 months, and more complicated cases can be extended by 6 months, that is, 18 months.
Second, the notification requirements and necessary procedures.
The procedure for requesting notice is similar to the federal rules of civil procedure. The contents required to be informed include all matters in the investigation. The procedure for requesting notification is generally completed within 5 months after filing the case. Under normal circumstances, the complainant can plan his actions in advance in the notification procedure, the government lawyer of the International Trade Commission can make full preparations within 30 days, and the respondent may be required to submit various materials within a few days.
If the interested party fails to perform the prescribed notification procedure, the administrative judge has the right to impose sanctions, including accepting the facts that are unfavorable to the party who fails to perform the notification procedure, restricting the evidence provided by the interested party, and even making a ruling that is unfavorable to the party who fails to perform the notification procedure.
Three. Counterclaim and mediation procedure
(1) counterclaim
In the preliminary ruling stage of the administrative judge, the defendant must file a counterclaim within 20 days from the date of service of the complaint. If the complainant applies for a temporary injunction at the same time, the defendant must submit a counterclaim against the temporary injunction within 10 days from the date of service of the complaint (if the situation is complicated, the defendant must submit it within 20 days).
The contents of counterclaim include the oath signed by the defendant, the names, addresses and telephone numbers of lawyers, agents and complainants. The defendant must answer the allegations in the indictment one by one and have evidence to support them. Generally, to refute the accusation of patent infringement, it is necessary to explain that the product is not protected by this patent or that this patent is illegal, and provide relevant evidence to support it.
(2) Mediation
After the investigation begins, either party can propose mediation. The party requesting mediation needs to submit a written application. State in your application that you have received the relevant documents delivered during the investigation. The administrative judge in charge of the case or the US International Trade Commission will decide the degree and scope of mediation according to the situation.
Four. Summary procedure and termination of investigation
(1) summary procedure
The complainant's lawyer or other representative who supports the complainant shall apply for a summary ruling within 20 days after the investigation begins, and the defendant shall apply for a summary ruling at any time after the investigation begins, but not later than 30 days before the scheduled hearing.
After receiving the notice of summary judgment, the defendant shall submit the defense within 10 days. The administrative judge shall conduct an oral debate according to his authority or the application of any party, and request to submit an outline or memorandum of the debate. The statement of support or refutation should be supported by evidence, and the sworn person should clearly indicate that he has the ability to prove the contents of the statement. The administrative judge allowed the statement to be supplemented. If the party who opposes the summary procedure can't point out that there is substantial evidence to hold a hearing for substantive cross-examination, the administrative judge can still make a decision through the summary procedure, or ask the other party to provide further evidence to determine whether the summary procedure is applicable.
(2) Termination of investigation
The investigation is terminated under the following circumstances:
1, the complainant withdrew the lawsuit;
2. Both parties reach a settlement and sign a license agreement or arbitration agreement. In this case, the administrative judge in charge of the case makes a ruling and submits the ruling and the agreement between the two parties to the US International Trade Commission for consideration. If the agreement between the two parties contains confidential information, a summary of the non-confidential agreement shall be submitted at the same time. The US International Trade Commission will decide whether to approve the ruling of the administrative judge by weighing whether the agreement will affect the public health and social welfare of the United States, the competitive conditions of the American economy, the production of similar or directly competitive products in the United States, American consumers and other factors. If the investigation is terminated due to the deliberation of the US International Trade Commission, the defendant does not constitute infringement. If the United States International Trade Commission does not recognize the ruling of the administrative judge, both parties are not bound by the agreement.
V. Default award
In the following cases, the US International Trade Commission will make a ruling based on unilateral evidence:
(1) If the defendant fails to submit his defense opinions within the specified time and manner without justifiable reasons, the administrative judge may make a ruling based on unilateral evidence;
(2) The complainant applies or the administrative judge issues an order ex officio, requiring the defendant to explain the reasons. If the defendant fails to explain the reasons within the specified time, the administrative judge may make a ruling based on unilateral evidence;
(3) If the defendant abuses the procedure, he will not cooperate during the investigation. The complainant makes an application or the administrative judge issues an order ex officio and makes a ruling based on unilateral evidence;
(4) The absence of the defendant shall be deemed as a waiver of the right to appeal and the right of reply during the investigation. The administrative judge may rule by default.
When the defendant is absent or deemed to be absent, the complainant applies to the US International Trade Commission to take direct measures against the defendant. If the US International Trade Commission thinks that the complainant's application reason is correct, it will issue an exclusion order, a stop order, or both an exclusion order and a stop order; Considering the public health and social welfare, the competitive conditions of the American economy, the production of similar or directly competitive products in the United States, the interests of American consumers and other factors, the US International Trade Commission may not issue a ban.
Intransitive verb protocol solver
Intellectual property cases and non-intellectual property cases have different agreement procedures.
Intellectual property cases: For patent infringement cases, both parties can resolve the dispute by signing a license agreement. After signing the license agreement, both parties need to sign an agreement and submit it to the US International Trade Commission, stating that there is no other agreement on the substance of the investigation. The government lawyer evaluates the agreement, and the administrative judge makes a preliminary ruling to explain whether the investigation can be terminated according to the agreement. After that, the administrative judge submitted the preliminary ruling to the US International Trade Commission, which made a final ruling.
Non-intellectual property cases: For non-intellectual property cases, both parties can resolve disputes by signing a consent order. The plaintiff, the defendant and the government lawyer * * * all filed requests for consent orders with the administrative judge. The application must be made before the hearing begins, and the administrative judge may allow an extension according to the circumstances. The administrative judge makes a preliminary ruling and submits it to the US International Trade Commission. The United States International Trade Commission will publish an announcement in the Federal Gazette to explain the preliminary ruling, and interested parties shall give their opinions on the preliminary ruling within 10 days.
When deciding whether to accept the consent order, the US International Trade Commission needs to consider public health and social welfare, the competitive conditions of the US economy, the production of similar or directly competitive products in the United States and the interests of American consumers. If the US International Trade Commission denies the consent order, the investigation will continue.
Seven. Temporary injunction
The complainant can apply for a temporary injunction at any time, but it must be before the final decision of the US International Trade Commission. If the complainant also requests a temporary injunction when submitting the complaint, the US International Trade Commission will decide whether to file a case within 35 days after receiving the complainant's application. Rejecting the temporary injunction does not affect the decision of the US International Trade Commission whether to file a case.
If the United States International Trade Commission has reason to believe that the complainant's allegations are preliminary, and if measures are not taken first, it will cause immediate and serious damage to domestic industries in the United States, it may issue a temporary injunction. If the U.S. International Trade Commission thinks that the basis for the complainant to apply for a temporary injunction is not sufficient, and taking a temporary injunction will cause great harm to the respondent, it will require the complainant to provide a guarantee before issuing a temporary injunction. If the US International Trade Commission decides in the final ruling that the defendant has not infringed the intellectual property rights of the United States, the cash deposit paid by the plaintiff will be confiscated and compensated to the defendant.
If the US International Trade Commission decides to accept the application for temporary injunction, it will be submitted to the administrative judge in charge of the case. According to the law, the US International Trade Commission should make a final ruling on the temporary injunction within 90 days, which can be extended to 150 days for complex cases. The preliminary ruling is made by the administrative judge within 70 days after receiving the application, and the complicated case is extended to 120 days. Dates include holidays and sundays. If the second day after the date expires is a holiday or Sunday, it will be postponed to the first working day after the holiday or Sunday ends. After the administrative judge makes a preliminary ruling, the preliminary ruling of the temporary injunction will automatically become the decision of the US International Trade Commission if it is not revised by the US International Trade Commission.
During the temporary ban, importers who want to continue to import the products involved must pay a deposit to the US Customs, and the amount of the deposit is determined by the US International Trade Commission. In the report of the American Finance Committee, it is pointed out that the amount of margin must be enough to offset the result of unfair competition. When determining the amount of the deposit, the US International Trade Commission can use the difference between the complainant's sales price in the United States and the CIF price of the products involved.
Eight. Verification and hearing
(1) verification
Verification methods: including testimony, interrogation, showing certificates, requesting entry, summoning, etc.
Scope of verification: (1) Physical evidence and documentary evidence: including mode of existence, description, characteristics, storage, conditions and storage location; (2) Witness: including the identity and address of the person; (3) Remedies for violation of US tariff law; (4) Verify the proper guarantee submitted by the defendant.
(2) hearing
Pre-trial is usually held before the court session, so that the parties can simplify and clarify the issues, determine the scope of the hearing, determine whether the request should be amended, review the facts and documents, consider the necessity and willingness to amend the defense, the facts and contents stipulated and adopted by law, the time for verifying and providing evidence, and exchange witness information and evidence. During the preliminary examination, the two sides also determined the number of experts and economic and technical witnesses. The names of witnesses were also announced during the preliminary hearing. After the preliminary hearing, the administrative judge issues a preliminary hearing order, explaining the results of the preliminary hearing.
The purpose of the hearing is to enable the administrative judge to receive the evidence, listen to the debate and decide whether the products involved violate Article 337. At the hearing, who advocates who gives evidence. The complainant should prove that the defendant's behavior violated relevant laws. Each party needs to be properly informed, inquired, provided with evidence, opposed, moved and debated. All hearings held during the investigation are public unless instructed by the administrative judge. The hearing takes a long time, usually about two weeks. In addition to the instructions issued by the US International Trade Commission, the administrative judge in charge of the case is responsible for the whole hearing. Either party should bear the burden of proof for its own statement. Evidence with objectivity, relevance and authenticity will be accepted.
Nine. Preliminary ruling and deliberation of the US International Trade Commission
(a) the preliminary ruling of the administrative judge
Three months before the end of the target investigation period (four months before the longest investigation period exceeds 15 months), the administrative judge will make a preliminary ruling and submit the preliminary ruling and relevant suggestions to the US International Trade Commission.
The administrative judge also made preliminary rulings on the following motions: amendment of defense, determination of absence, summary procedure, mediation, termination or suspension of investigation, confiscation or refund of the defendant's deposit, setting a target period of more than 65,438+05 months, and interim measures to confiscate or return the complainant. The preliminary ruling on the above motion should also be submitted to the US International Trade Commission for consideration.
(ii) Deliberations by the United States International Trade Commission
The administrative judge makes a preliminary ruling, which is accepted by the US International Trade Commission. This ruling is regarded as the final ruling of the US International Trade Commission, unless one or more members of the US International Trade Commission suggest to reconsider the ruling within 45 days. Both parties may also request the US International Trade Commission to reconsider the preliminary ruling of the administrative judge.
The administrative judge made a preliminary ruling, which was accepted by the US International Trade Commission, and this ruling was regarded as the final ruling of the US International Trade Commission, unless one or more members of the US International Trade Commission suggested to reconsider the ruling within 30 days. Both parties may also request the US International Trade Commission to reconsider the preliminary ruling made by the administrative judge on the motion.
The application for reconsideration to the US International Trade Commission shall be made within 10 days after receiving the preliminary ruling made by the administrative judge. The application for reconsideration of the preliminary ruling of the motion shall be submitted within 5 working days after receiving the preliminary ruling of the administrative judge. The reasons for reconsideration generally include: the basis of preliminary ruling is wrong; Wrong application of law; The ruling is inconsistent with the policy of the US International Trade Commission. The other party may file a counterclaim within 5 working days after receiving the reconsideration request of the other party. The United States International Trade Commission decides to approve or reject the application within 45 days after the preliminary ruling is served on the parties (within 30 days after the preliminary ruling of the motion is served on the parties).
As long as one member supports the review of the preliminary ruling, the US International Trade Commission will initiate the review procedure. In the case of obvious mistakes or abuse of laws or procedures, the US International Trade Commission can initiate the review process on its own.
X. Procedures after the final award of the United States International Trade Commission
(A) the President of the United States policy review
If the US International Trade Commission decides after deliberation that the respondent has not violated Section 337, the ruling will take effect from the date of publication. If the US International Trade Commission determines that the defendant has violated Section 337 after deliberation, the ruling will take effect when the policy review period of the President of the United States expires.
After the US International Trade Commission makes the final ruling, it submits the final ruling and relevant recommendations to the President. If the President of the United States notifies the United States International Trade Commission to approve its ruling within 60 days after receiving the ruling, the ruling of the United States International Trade Commission will take effect on the day when the President of the United States notifies the United States International Trade Commission to approve the ruling; If the President of the United States does not veto the decision of the United States International Trade Commission within 60 days after receiving it, the decision of the United States International Trade Commission shall take effect on the 60th day from the date of making the final ruling.
(2) Reconsideration and judicial review
Any interested party may apply to the United States International Trade Commission for reconsideration within 14 days after receiving the final ruling of the United States International Trade Commission. After receiving the application for reconsideration, the US International Trade Commission shall confirm, cancel or modify the final ruling.
If the parties are dissatisfied with the final decision of the US International Trade Commission, they can appeal to the US Court of Appeals for the Federal Circuit within 60 days. The U.S. Court of Appeals for the Federal Circuit can directly review the ruling of the U.S. International Trade Commission.
There are two standards for judicial review in the U.S. Court of Appeals for the Federal Circuit. For legal issues, the U.S. Court of Appeals for the Federal Circuit decides all legal issues and interprets the Constitution and laws. The U.S. Court of Appeals for the Federal Circuit has the power to declare the decision of the U.S. International Trade Commission arbitrary, abusive and illegal. On the issue of fact, only when the US International Trade Commission "has no substantial evidence" can the US Court of Appeals for the Federal Circuit overturn its ruling. If a party refuses to accept the ruling of the Federal Circuit Court of Appeals, he can appeal to the Federal Supreme Court, and the ruling made by the Federal Supreme Court is final.
XI。 relief measure
According to legal procedures, the US International Trade Commission has the right to implement the following relief measures: limited exclusion order, temporary limited exclusion order, general exclusion order, stop order and temporary stop order.
The "Limited Exclusion Order" requires that one or more defendants' products be prohibited from entering the United States, which is specially issued to defendants convicted of infringement; The "General Exclusion Order" requires the customs to prevent all infringing products of a certain category from entering the United States, whether they are defendants or not, and all infringing products are excluded as long as the owner, importer or seller cannot prove that their products are not infringing; The "Stop Order" requires the defendant to immediately stop the alleged infringement, and the defendant's products shall not be exported to the United States, nor shall they be marketed, distributed, represented, sought for sale or transferred in the United States. The "prohibition order" applies to the defendant's shareholders, directors, employees, agents, licensees, distributors and enterprises controlled by other forms, as well as the defendant's successors and assigns. The "stop order" is not only aimed at the infringement that the defendant has completed, but also includes the defendant's future sales in the American market.
If the investigation finds that the defendant infringes or violates Section 337, the US International Trade Commission will issue an exclusion order or a stop order to exclude or prohibit the defendant's products 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 US International Trade Commission believes that this product should not be excluded from the United States, it can choose not to take action. In addition to exclusion orders and stop orders, the US International Trade Commission can also issue other orders, requiring the respondent to stop or stop engaging in unfair competition, and can also issue temporary stop or exclusion orders.
The United States International Trade Commission can order the seizure and confiscation of products imported into the United States in violation of Section 337. Seizure and confiscation only occur in the following three situations: ① the owner, importer or agent of controlled products tried to enter the American market before; (2) the product was excluded from the American market because of the prohibition order; (3) According to the prohibition order, the U.S. Treasury has served written notice to the obligee, importer or agent of the controlled products, including the prohibition order and the statement that the accused products will not be accepted if they enter the American market in violation of the regulations.
In violation of the order of the US International Trade Commission, the parties concerned will face a daily fine of US$ 6,543,800+or a civil penalty equivalent to twice the domestic value of the products illegally imported into the United States, and choose the one with a higher penalty amount in two ways.