Shanghai Rui Rui Law Firm lawyer Xing Road: 337 investigation lethal Chinese enterprises to actively respond to the three aspects

For the technology accumulation cycle is relatively short, do not grasp the core intellectual property rights of Chinese enterprises, how to face the huge loss of 337 investigation must be put on the agenda as soon as possible.

In recent years, Chinese companies frequently encounter the United States International Trade Commission (ITC) of the "337 investigation", its scope has been from the traditional textile, clothing, toys and other low value-added industries, the rapid expansion of the integrated circuit, electronic components, software and other high value-added industries, for many in the international market has just gains, not familiar with the American "intellectual property law", "Anti Unfair Competition Law" and "337 clause" of the electronic information enterprises, affected by the. In this increasingly serious situation, it is necessary to "337 investigation" of the basic rules and procedures and consequences are briefly introduced, and help Chinese enterprises to sort out coping strategies, and combing coping with "337 investigation" of the main ideas.

"337 investigation" and general patent litigation

The so-called "337 investigation" is a kind of administrative remedy system or quasi judicial relief system which is independent of the federal court system. This system originated in the United States in 1930 337th "Customs Law", after several amendments, the provisions of the import behavior if there is unfair competition, causing substantial damage to the domestic industry and the International Trade Commission for investigation according to the application of domestic enterprises. The so-called acts of unfair competition mainly refers to infringement of intellectual property rights of the following goods: one is the United States Patent; two is in accordance with the laws of copyright registration; three is in accordance with the "trademark law" registered trademark; four is the integrated circuit template legally registered (Mask), and other "unfair methods of competition in the import process and unfair behavior", namely the misappropriation of trade secrets and other methods and behavior. The "337" law enforcement agency is the United States International Trade Commission, a quasi judicial federal agency established by the United States Congress, which has extensive powers to deal with trade related issues. The 6 members of the committee are appointed by the president and approved by the Senate for a term of 9 years. The basic procedure of "337 investigation":

One is the application of investigation stage: ITC acceptance of the case within 30 days or not to make a decision, after receiving the application for investigation of American domestic enterprises, in the meantime, the plaintiff and defendant can unfair competition to the Office (ITC independent agency) lawyer for advice. If the final decision to initiate an investigation, in the Federal Register to be published. The defendant must reply within 20 days after the start of the investigation communique, the respondent's defense for a period of 30 days.

Two is the investigation of the hearing stage: after the investigation began, the International Trade Commission appointed an administrative judge presided over the full investigation of the 337". The administrative judge is responsible for collecting evidence, hearing and making an initial judgment. Unless it is considered by the Committee as a "more complicated" case, the investigation of the facts of the case usually lasts from 5 months to 6 months. Followed by a two week hearing. The defendant respondent in court must be related with patent infringement in addition, can also provide defense against "337 clause", for example, that the American industry had effectively established and run, no harm to the related industries.

After a preliminary judgment has been made by the administrative judge, any party may, within 10 days, review the matter as soon as possible. If the committee finally believes that the defendant is in violation of the "337 clause", it must be in the right way to the plaintiff relief. ITC decided to give relief to the plaintiff, but also must be sent to the U.S. President for reconsideration. The president will review the committee's decisions and decrees within 60 days. If the Committee issued an exclusion order, in the presidential review period, the goods can still continue to be imported into the United States, but must pay a certain amount of re export guarantee. If the president does not stand, it is deemed to be the consent of the law from the date of the end of the 60 day. Any interested party may appeal to the Supreme Court of the United States, if it is not satisfied with the final judgment or decree.

The three is to provide relief stage: "the 337 clause" to the right to provide relief for the class of two, exclusion order (Exclu-sionOrder) and injunction. Exclusion order refers to the prohibition of products or similar products imported into the United states. ITC will notify the U.S. Customs will be involved in the product to be blocked. It should be noted that it only after the entry into force of the import and export of products to the United States to the United States to stop the behavior of the product, and the products have been imported into the United States is not binding. The exclusion order is divided into a limited exclusion order (LimitedExclusionOrder) and a general exclusion order (GeneralExclusionOrder). The former only on specific cases involving the particular goods or enterprise products to block imports of similar products; the latter refers to the entire industry or product, regardless of the source of all banned imports, resulting in the industry overall loss of the American market. The object of the injunction is to be investigated by the infringer, which requires the immediate cessation of infringement of intellectual property rights and unfair competition and other illegal acts. Injunction is a temporary measure that is used at any stage before the final judgment of the 337 investigation and may therefore be used in conjunction with the exclusion order.

337 survey lethal huge

"337 investigation" relative to the federal court's patent litigation system, in the following areas have greater lethality:

First, unlike the federal court's patent litigation, the terms of the 337 terms of the object is not limited to the prosecution of infringement products, but also in the form of fuzzy ruling, universal release