Section 337 of the US trade laws gives the US International Trade Commission (USITC) authority to prevent “unfair practices in import trade.” In addition to the statute’s provisions that allow the USITC to exclude imported goods that infringe US intellectual property (IP) rights, it also provides for the USITC’s ability to remedy other “unfair methods of competition and unfair acts in the importation of articles. . . the threat or effect of which is,” inter alia, “to destroy or substantially injure an industry in the United States. . . [or] to restrain or monopolize trade and commerce in the United States.” 35 U.S.C. § 1337(a)(1)(A)(i) & (iii). This section, while not often invoked, is occasionally used as the basis for antitrust claims. For example, the USITC’s investigation in Certain Carbon and Alloy Steel Products, Inv. No. 337-TA-1002 was instituted to investigate alleged violations of Section 337 by the Chinese steel industry based on claims of trade secret misappropriation, false designation of origin, and antitrust violations. In its March 18, 2018 opinion, the USITC determined for the first time that “antitrust injury” standing is required for antitrust claims before the Commission, affirming the Administrative Law Judge’s dismissal of the claims. Our sister publication, the Global IP & Technology Law Blog, provides additional information about this determination here.
