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Safeguarding U.S. Intellectual Property Rights: The Domestic Industry Requirement of Section 337



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Description:

Section 337, 19 U.S.C. § 1337, is one of the most effective ways to safeguard U.S. intellectual property rights, particularly with respect to products with short life cycles.  This statute, administered by the U.S. International Trade Commission, makes it unlawful, among other unfair acts, to import any article into the United States that infringes valid and enforceable U.S. IPR.  A successful complainant is typically awarded an exclusion order blocking the importation of infringing goods.  The ITC may also prohibit respondents from distributing or selling infringing articles in their U.S. inventory.  These robust remedies, along with other advantages of litigating at the ITC, have made Section 337 a powerful tool for owners of U.S. IPR seeking to curtail unfair foreign competition.

As a trade statute, however, Section 337 requires a complainant to prove it has a "domestic industry."  In investigations involving allegations of patent infringement (the most common type of case), the complainant must prove that, with respect to the articles protected by the patent, there is significant investment in plant and equipment, significant employment of labor or capital, or substantial investment in the patent's exploitation through engineering, research and development, or licensing.  The legal and economic tests applied in this analysis are fact-specific and complex.  Indeed, the extent to which certain types of activities and investments can create a domestic industry is an evolving and increasingly contentious issue.        

Companies should keep abreast of these developments at the ITC.  In this webinar, Pallavi Seth and Beau Jackson provide legal and economic views of the domestic industry requirement, discuss recent changes to the application of the requirement, and offer suggestions for how companies can maximize their litigation outcomes at the ITC – whether as a complainant or a respondent.

Presenters:

Dr. Pallavi Seth is a Senior Associate at The Brattle Group specializing in intellectual property litigation at the U.S. International Trade Commission and U.S. district courts.  She has assisted leading technology companies, including Intel, Apple, HP, Samsung, RIM, Nokia, Panasonic, LG, and Garmin.

She is an expert in Section 337 investigations at the ITC and has prepared testimony on a range of such matters including evaluating the economic prong of the domestic industry requirement, determining the nature of remedy, evaluating EPROMs factors to determine exclusion of downstream products, and analyzing the impact of remedy on the public interest.

Dr. Seth has prepared testimony and led case teams on numerous high-profile cases, including Certain Multimedia Display and Navigation Devices and Systems, Components Thereof, and Products Containing Same (ITC Inv. No. 337-TA-694), where she assisted Counsel for Respondent Garmin to evaluate the economic prong of the domestic industry.  Most recently, she assisted Counsel for Respondents Intel, Apple, and HP in evaluating the impact of an exclusion order on public interest in Certain Microprocessors, Components Thereof, and Products Containing Same (ITC Inv. No. 337-TA-781).  As part of this engagement, she led a team that included Nobel Prize Winner Dr. Joseph Stiglitz.

Dr. Seth has supported testifying experts and conducted extensive econometric analyses in commercial litigation and intellectual property matters in U.S. district courts, including tax litigation, the assessment of commercial success, and the calculation of damages associated with patent infringement, breach of contract, and misappropriation of trade secrets.

Her industry expertise includes high-tech and consumer products such as semiconductors, flash memory devices, liquid crystal display panels, smartphones, and computers; and financial institutions and gaming industries.

Dr. Seth has prepared testimony in over a dozen Section 337 investigations.  She is the Chair of Programs for the ABA-IPL ITC Committee and a frequent speaker at CLE events.

Beau Jackson is an international trade and customs attorney at Adduci, Mastriani & Schaumberg, LLP, a Washington, DC law firm with the nation's top-ranked Section 337 practice.  Mr. Jackson has significant experience practicing before the U.S. International Trade Commission, the U.S. Court of International Trade, U.S. Customs and Border Protection, and the Office of the U.S. Trade Representative.  His practice areas include Section 337 investigations, customs matters (administrative and litigation), antidumping investigations, and trade policy matters.  He also advises clients on foreign investment issues, in particular the intellectual property aspects of such transactions.

Mr. Jackson has been involved in over 10 Section 337 investigations and has successfully represented both complainants and respondents.  In ITC Inv. No. 337-TA-694, Mr. Jackson was part of the team that established landmark precedent on the issue of a licensing-based domestic industry.  In ITC Inv. No. 337-TA-605, he helped the complainant prevail in a bond forfeiture proceeding – the first such successful action in almost a decade.  Mr. Jackson has litigated both patent and trade secret cases under Section 337, in matters involving a diverse array of industries.        
 
Previously, Mr. Jackson worked as a law clerk for the Committee on Ways and Means (Subcommittee on Trade) in the U.S. House of Representatives, and at USTR.  Prior to entering law school, he spent over two years serving as a Peace Corps volunteer in the Cape Verde islands of western Africa.

Mr. Jackson is a member of the ITC Trial Lawyers Association, the Customs and International Trade Bar Association, the Federal Circuit Bar Association, and the Washington International Trade Association.



Practice Areas: Intellectual Property Law, International Intellectual Property, International Law & Global Trade
Online Media Type: Audio
Production Date: 07/25/2013 1:00 PM EDT
Level: Intermediate
Category: Standard
Duration: 1 Hours, 0 Minutes
Online Format: Live

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Speakers:
Pallavi Seth , Ph.D. - Senior Associate - The Brattle Group
Beau Jackson - Associate, Adduci, Mastriani & Schaumberg, LLP
This product is designed to provide information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought.


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