□ Wen Xikai
In the United States, the patentee has the right to prohibit others from producing his protected patented products in the United States and copying his patented products overseas and selling them to the United States. There are two ways to prosecute this kind of infringement: using Article 337 of the United States Tariff Act of 193 (hereinafter referred to as Article 337) to file a complaint with the United States International Trade Commission; To the federal district court. But more and more American enterprises use Article 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 up to the danger that they are sued by American companies to the US International Trade Commission for unfair trade and their goods are prohibited from being imported by the US Customs. To this end, intellectual property experts reminded that it is necessary to master the rules and prevent "337 disputes" before they happen.
What is Article 337
According to Article 337, the United States International Trade Commission has the right to refuse all products that infringe the intellectual property rights of the United States 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 United States International Trade Commission determines that there is unfair trade in an imported goods, American companies suffering from unfair trade will demand that the United States should close the goods.
according to article 337, the charges that can be brought to the U.S. international trade commission generally include allegations of infringement of intellectual property rights in imported goods. The remedy of the United States International Trade Commission to the winning party includes exclusion orders-prohibiting the import of a specific product, and stopping or refusing 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 have a fatal blow to the importer.
Article 337 prohibits all unfair competition or any unfair behavior in importing products to the United States. The so-called "unfair practices in import trade" means: "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 the threat or effect is enough to destroy or substantially damage domestic industries in the United States, or hinder the establishment of such industries. Or restrict or monopolize the 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 such goods infringe on the registered valid and enforceable patent rights, trademark rights, copyrights or exclusive rights of integrated circuit chip layout design in the United States, and these four rights already exist or are still being established. "
This shows that the criterion to measure 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 curbing the formation of an industry and leading to the formation of a trade monopoly in the United States. Article 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 Article 337 litigation when they enter the American market, so they 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 can be obtained by the litigants in domestic tort litigation in the United States to 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.
Committee's investigation
According to Article 337, whether the import behavior is unfair depends on the investigation of the United States International Trade Commission, which "shall investigate any alleged illegal act upon request or according to its authority. After the investigation begins, the Committee shall publish a notice in the federal register, and shall end the investigation and make a decision as soon as possible. In order to promote 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 postponed for six months, but it must also be completed within 18 months.
The US International Trade Commission should appoint an administrative judge in time and transfer the 337 investigation to the judge. If the result of the investigation is that the party has violated the provisions of Article 337, the Committee will issue an order prohibiting all infringing goods imported by the illegal party from entering the United States. "Considering the impact of this exclusion on the health and welfare of the public, the competitive conditions in the American economy, the production of similar or direct competitive products in the United States, and American consumers," the Committee may choose not to take action if it thinks that such goods should not be excluded from entering the United States.
In the case of choosing to prohibit the goods from entering the United States, the prohibition order of the United States International Trade Commission should be limited to all articles found to be illegal and imported by the illegal party. This is a "limited exclusion order" or a "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 identify 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, which is called the "general exclusion order" or the "general prohibition order". It prohibits all imported products of a certain category from entering the American market, without distinguishing between the origin or producer and the future producers and importers that are not yet known.
if during the investigation, the U.S. 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 according to the amount stipulated by the US International Trade Commission, and fully protects the interests of the US prosecutor from harm, the importer's goods can still enter the US market. In addition to the exclusion order, the US International Trade Commission may issue an order requiring the violator to stop and stop engaging in unfair competition, and may also issue a temporary stop or refusal order. Failure to comply with the order will face a civil penalty of about $1, 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 Article 337. Seizure and confiscation of products only occur when the obligee, importer or custodian has previously tried to import the product, the product has been refused to be imported due to the exclusion order, and the importer has been served with the exclusion order at the previous import and has been informed of the possibility of seizure and confiscation of its products.
final decision
No matter what decision is made by the US International Trade Commission, it must be audited by the President of the United States. If the President of the United States can deny the decision of the United States International Trade Commission within 6 days after receiving the decision, the decision will cease to be valid. If the president agrees with the order of the US International Trade Commission, or does not deny the order within 6 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, American enterprises can apply to the International Trade Commission for filing a case as long as they can prove that the imported products are illegal or infringe intellectual property rights, and there are indeed related industries in the United States, which plays a role in containing and restricting competitors. For responding enterprises, because the investigation usually involves intellectual property protection and professional technology, they often have to rely on lawyers and technical experts, and the burden is very heavy. Enterprises should try their best to do a good job of investigation and research related to intellectual property rights in advance, and try their best to avoid falling into Article 337 disputes.