Infringement claims related to import trade

Under Section 337 of the Tariff Act of 1930, products which infringe a US patent can not be imported into the United States, and the sale of previously imported infringing product can be blocked.

The Act also covers products which are manufactured abroad by a process which infringes a US patent, and the importation of component pieces which can be assembled after importation to produce an infringing product.

Such cases are heard before the United States International Trade Commission (ITC).

Due to amendments to the Tariff Act brought in 1988, it is substantially easier for US patent owners to demonstrate violations of Section 337. Prior to those amendments, it was necessary for the parent owner to show that the importation or sale threatened:

“to destroy or substantially injure an industry in the United States, prevent the establishment of such an industry, or restrain or monopolize trade and commerce in the United States. (Section 337, US Tariff Act of 1930)

The amendments allow those claiming patent infringement to prove only two elements:

1. The import or sale after import of an infringing article
2. Existence of a domestic industry

The only form of relief granted by the US International Trade Commission (ITC) is an exclusion order, or a cease and desist order, against a domestic receiver of imported infringing goods. The patent owner cannot receive monetary damages.

Actions at the U.S. International Trade Commission (ITC) can be very complex and intricate. Therefore, appropriate legal guidance should be sought when contemplating an action to block importation of goods.