Most Section 337 investigations allege violations of intellectual property (“IP”) based rights involving patent, registered trademark, or registered copyright infringement (“statutory IP claims”). In such cases, the complainant must establish that a valid and enforceable U.S. patent, trademark, or copyright is being infringed by the importation into the U.S., the sale for importation, or the sale within the U.S. after importation of an accused article, and that a domestic industry exists or is in the process of being established.
In recent years, however, the ITC has seen a sharp increase in the number of Section 337 investigations alleging other types of claims. For example, in 2011, only three investigations alleged non-patent claims, but in 2016 and 2017 the numbers reached twenty and fifteen, respectively. The statutory language for Section 337 claims is broad and applies to any “unfair methods of competition and unfair acts in the importation of articles.” 19 USC 1337(a)(1)(A). Based on this language, complainants have asserted claims of trade secret misappropriation, antitrust violations, false advertising, breach of contract, and tortious interference with contractual relations. Indeed, the language is broad enough to support other types claims that are as yet un-tested at the ITC, such as foreign bribery, use of forced labor, and other violations of international or U.S. law by competitors. For non-statutory IP claims, complainants must establish that the accused unfair methods or acts have the threat or effect of which is “to destroy or substantially injure an industry in the United States,” “to prevent the establishment of such an industry,” or “to restrain or monopolize trade and commerce in the United States.” 19 USC 1337(a)(1)(A).
This article discusses recent investigations with noteworthy non-statutory IP claims.