ITC Section 337 Litigation

In the ITC’s high-velocity environment, speed is as critical as legal precision. Cooley’s Section 337 litigation team has the “rocket docket” experience necessary to navigate complex patent infringement investigations and trade disputes. Our deep background and familiarity with ITC personnel and practices enables us to provide insights and guidance on procedures unique to this forum, such as discovery committees, the recently shifting domestic industry requirements and working with OUII staff attorneys. We represent both complainants seeking to protect their market share through exclusion orders and respondents defending against aggressive litigation.

Our approach integrates deep technical knowledge – bolstered by a team of PhD-level scientists – with seasoned trial experience. We don’t just litigate in a vacuum; we synchronize ITC investigations with parallel district court litigation and PTAB proceedings to ensure a unified global IP strategy. From initial complaint through the presidential review period and any appeals, we focus on one goal: securing a decisive competitive advantage for our clients.

Frequently asked questions

What is a Section 337 investigation?

A Section 337 investigation is a legal proceeding conducted by the ITC to adjudicate claims of unfair competition in the importation of products into the United States. While most cases involve patent infringement, they can also cover trademark and copyright infringement or trade secret misappropriation.

How long does an ITC investigation typically take?

The ITC is known as a “rocket docket.” Most investigations are completed within 12 to 16 months. This accelerated timeline requires a legal team capable of managing intense discovery and trial preparation in a fraction of the time allowed in US district courts.

What remedies are available from the ITC?

Unlike district courts, the ITC cannot award monetary damages. Instead, it provides powerful injunctive relief, primarily in the form of exclusion orders, which direct US Customs and Border Protection to bar infringing products from entering the country, and cease and desist orders, which prohibit the sale of infringing inventory already within the US.

Can I litigate in the ITC and district court simultaneously?

Yes. It is common to have parallel proceedings. However, if a respondent is sued in both venues for the same claims, they have a statutory right to stay the district court litigation until the ITC investigation is concluded.

What is the “domestic industry” requirement?

To succeed in the ITC, a complainant must prove that a “domestic industry” exists or is in the process of being established in the United States. This involves demonstrating significant investment in US plants, equipment, labor or capital related to the articles protected by the asserted intellectual property. Recent case law from the Federal Circuit held that significant US investment in sales, marketing, warehousing, quality control and distribution related to the articles protected by the asserted intellectual property can also satisfy the domestic industry requirement.