Navigating ITC Section 337 Investigations

An ITC Section 337 investigation refers to a legal process conducted by the United States International Trade Commission (USITC) to address unfair trade practices related to intellectual property rights. This investigation helps U.S. companies and individuals regarding unfair trade or competition in importation. It allows them to file intellectual property infringement complaints against foreign entities that are believed to be engaging in unfair trade practices.

Requirements for Section 337 Investigations

Complainants under the Section 337 Investigations must prove the following:

• Infringement

The complainant must prove that the accused party’s product infringes the complainant’s intellectual property.

• Importation

Complainants must prove that the products are imported, sold for importation, or sold in the U.S. after the importation.

• Domestic Industry

Complainants must prove that there is a domestic industry or is in the process of being established in the U.S.

Typically, the institution of investigations happens within 30 days after the ITC receives the complaint. Evidentiary hearings occur within 8-9 months and the target date for completing the investigation is 14-16 months. The complainants need to set a litigation strategy to maximize the time. Here are the key elements of a litigation strategy:

• Target Date

The Administrative Law Judge (ALJ) assigned will allow the parties to decide on the target date for the ITC to complete the investigation. The target date affects the parties’ ability to obtain evidence. An earlier target date means that there is less time for parties to conduct discovery.

• Discovery Planning

Planning for discovery in Section 337 begins immediately after the ITC institutes an investigation. Parties can choose to go broad or go deep in their discovery strategies – which have their advantages or disadvantages. The best discovery strategy should be used to ensure that every relevant document needed in the investigation is collected.

• Storytelling

Compelling storytelling is important in Section 337 investigations. ITC litigants should develop strategies that include the themes to use, the evidence to highlight, and the witnesses who will tell the story.

Successfully navigating ITC Section 337 investigations needs a clear understanding of the process, a strategic approach, and great attention to detail. These investigations can be complex and fast-paced, but with the right guidance and preparation, favorable outcomes can be achieved.

Join our Successfully Navigating the Ins and Outs of the ITC Section 337 Investigations webcast to learn more.