Shenzhen issued guidelines to deal with trade friction

A new government gazette to department documents released the Shenzhen Municipal Intellectual Property Bureau, "Shenzhen high tech enterprise intellectual property protection action plan work plan", also announced a series of supporting documents, including the guidance of high-tech enterprises to deal with trade friction guide (hereinafter referred to as the response to the "337 investigation"). The investigation is essentially based on the 1930 U.S. Tariff Act 337th provides for the industry's administrative relief. The competent authorities of the United States International Trade Commission (ITC) need to investigate allegations against unfair trade competition, and on the basis of the survey results to sanctions, so people used to be according to the "337 clause" of a set of administrative investigation, trial, sanctions are collectively referred to as "337 investigation".

The manual pointed out that the "337 investigation" of the legal basis, procedures and measures, the characteristics and effects are as follows: first, very low filing conditions. According to the "337 provisions" requirement investigation request, do not need to prove that the domestic industry in the United States have been damaged, as long as there to prove that the plaintiff registered effective intellectual property rights in the United States, whether it is domestic or foreign people, "337 investigation" can file an application to the ITC, even if the product itself has involved in the exporting country intellectual property, as long as there is no access to the American intellectual property registration, it meets the requirements for filing. Since the "337 investigation" does not provide a mechanism for damages, there is no need to prove that the intellectual property rights in the United States have suffered actual damage, or the extent of damage. Such low filing conditions have led to an increasing number of US intellectual property owners using "337 investigations" to discourage imports of foreign goods. In fact, the launch of the 337 survey is not difficult, almost all of the complaints are submitted to the Commission after the start of the investigation.

Two legal risk is low. "337 investigation" the verdict is ITC the product the existence of unfair trade practices to make up or not up to judge, even if the defendant does not exist to determine infringement or unfair trade practices, does not require the plaintiff assume any liability. Once the ITC of the product involved in violation of the provisions of the 337, constitute unfair trade ruling, the plaintiff can easily be blocked outside the country, to prevent its products into the U.S. market. Even if the product has entered the U.S. market, you can request the ITC issued a stop order, so that these products can not enter the sales channels, or even other business activities. Because the plaintiff can be very low legal risk, to win a very huge return on interest, "337 investigation" is gradually becoming a common trade barriers for u.s..

Three is a simple and quick procedure. Because the majority of the "337 investigation" in no case must be closed within 12 months, compared to the federal courts of the United States patent litigation cases generally take years to have the "337 investigation" as an effective means to exclude competitors very popular with the American enterprise favor. This fast pace is clearly beneficial to the prosecution, because the use of the program can quickly stop foreign competitors, U.S. importers or distributors continue to sell foreign products in the United states. On the contrary, this is extremely detrimental to the defendant, as the defendant must meet the requirements of the fact finding and make a substantive reply before a short deadline. Therefore, the "337" litigation has become a powerful legal tool for American companies to deal with foreign companies.

Four is the effective duration of sanctions. The permanent exclusion order of the "337 investigation" sanctions, because it is made for infringing products, therefore, the exclusion order before the infringement of intellectual property rights disappears, it is always valid. Sometimes, this effect may continue until the expiration of the term of protection of intellectual property rights. In other words, how long is the effectiveness of intellectual property rights, the effectiveness of permanent exclusion order can last long.

Five is a wide range of combat. "337 investigation" sanctions to intercept products into the United States as the goal, therefore, only the product does not recognize people. Since the "337" in the ruling has the right to issue a "comprehensive exclusion order", that is, Chinese enterprises once the respondent absent or lost, the judge's ruling can be a comprehensive ban on the export of certain products in china.

Six is the high cost of responding. "337 investigation" of the lawyer's fee is usually several times of anti-dumping or even dozens of times, but in general it is difficult to estimate in advance, "337 investigation" is actually a prosecution "testimony" in the process of confrontation is more intense, the program is more complex, the higher the cost of lawyers. Judging from the existing cases in China, almost no less than one million dollars in the respondent fee.

The manual points out the risk of reducing the "337 investigation" and the coping strategies: (1) to speed up R & D, to have independent intellectual property rights, and to eliminate dependence on foreign technology. (two) make full use of laws and international conventions to protect its own intellectual property rights. On the one hand, it is necessary to apply for and register the patent in the country, on the other hand, attach importance to the international protection of intellectual property rights. (three) do market research and intellectual property search, to avoid infringement of intellectual property rights of others. In mass production enterprises established in the United States Patent Technology Based on product, should conscientiously do market investigation and retrieval of intellectual property work, to fully understand the use of intellectual property rights registration, transfer to intellectual property rights, in order to avoid getting involved in unnecessary disputes over intellectual property rights.

At present, more and more Chinese enterprises encounter 337 investigation, the more famous CISCO v. HUAWEI event. Not long ago, the United States International Trade Commission (ITC)