A Section 337 investigation is a proceeding at the U.S. International Trade Commission that targets unfair practices in import trade, most often the importation of goods that infringe a U.S. patent, trademark, or copyright. The Commission cannot award money damages. Its power is at the border: it can order U.S. Customs and Border Protection to stop infringing goods at every port of entry, a remedy no federal court can issue. That makes Section 337 the tool of choice when the infringing goods come from foreign manufacturers who are hard to reach through ordinary litigation.
What Conduct Section 337 Reaches
The statute covers two categories of unfair conduct, and the proof burden is very different between them.
The first category is statutory intellectual property infringement. Imported goods that infringe a valid U.S. utility or design patent, a registered copyright, or a registered trademark fall here. Process patents are covered too: if a foreign manufacturer uses a patented process to make goods abroad and then ships them into the country, that importation violates Section 337 even if the finished product itself is not patented.1Office of the Law Revision Counsel. 19 USC 1337 – Unfair Practices in Import Trade Semiconductor mask works and protected boat hull designs round out the list. For these claims, a complainant does not have to prove injury to a domestic industry. The infringement itself is enough, provided a domestic industry exists.
The second category is a broader catch-all for unfair methods of competition that fall outside those specific IP categories. Trade secret misappropriation, common law trademark infringement, trade dress infringement, false advertising, and antitrust violations can all trigger an investigation.2U.S. International Trade Commission. About Section 337 For these non-statutory claims, the complainant carries a heavier burden: showing the unfair act has the threat or effect of destroying or substantially injuring a domestic industry, preventing the establishment of one, or restraining or monopolizing trade in the United States.3U.S. International Trade Commission. 337 Investigations Frequently Asked Questions Many non-statutory claims stall on that injury requirement.
Who Can Bring a Complaint: The Domestic Industry Requirement
Section 337 exists to protect U.S. industry, so before the Commission will act a complainant must prove that a domestic industry tied to the asserted IP rights actually exists in the United States, or is being established. The requirement has two parts, and both must be met.1Office of the Law Revision Counsel. 19 USC 1337 – Unfair Practices in Import Trade
The Economic Prong
The economic prong asks whether the complainant has made real economic commitments in the United States tied to the protected articles. The statute recognizes three ways to satisfy it: significant investment in plant and equipment, significant employment of labor or capital, or substantial investment in exploiting the IP through activities like engineering, research and development, or licensing.1Office of the Law Revision Counsel. 19 USC 1337 – Unfair Practices in Import Trade Only one is needed. A domestic manufacturer can point to its factory and workforce. A licensing-focused company can point to its licensing program and the R&D behind the technology.
Documentation matters here. General overhead and broad corporate spending do not count. The investment has to connect specifically to the articles protected by the IP at issue, and companies that never tracked those expenditures separately often struggle to prove them later.
The Technical Prong
The technical prong requires showing that the complainant’s own domestic activity actually practices the asserted IP right. In a patent case, that means demonstrating a domestic product or process embodies at least one claim of the asserted patent. It is the same claim-construction exercise that drives the infringement case against the respondent, run against the complainant’s own products.
How an Investigation Moves
Once a complaint is filed, the Commission has 30 days to decide whether to institute an investigation. If it does, the case is assigned to an Administrative Law Judge who runs a compressed schedule. The statute directs the Commission to complete investigations “at the earliest practicable time,” and historically most cases finished in under 15 months, though complex investigations with multiple patents or respondents increasingly run longer.4U.S. International Trade Commission. How Long Do Section 337 Investigations Last?
The proceedings look like federal litigation on fast-forward: written discovery, document production, depositions, expert reports, and an evidentiary hearing before the ALJ. After the hearing, the ALJ issues an Initial Determination addressing whether a violation occurred and whether the domestic industry requirement is met. The full Commission then reviews those findings and reaches a final determination.
The 100-Day Early Disposition Program
The Commission runs a pilot program that lets the ALJ resolve a single potentially dispositive issue early. At institution, the Commission can flag a threshold question, such as whether a domestic industry exists or whether the accused products are even being imported, and direct the ALJ to rule on it within 100 days. If the ALJ finds against the complainant, the investigation is stayed while the Commission decides whether to adopt that ruling; if the Commission does not review within 30 days, the ruling becomes final.5U.S. International Trade Commission. Pilot Program Will Test Early Disposition of Certain Section 337 Investigations The program spares both sides the expense of litigating infringement in a case that was always going to fail on a threshold issue.
Ignoring the Complaint
Foreign respondents sometimes decline to appear, especially smaller manufacturers for whom a U.S. proceeding feels remote. When a respondent fails to answer or participate in discovery, the ALJ can issue a default determination. A defaulting respondent loses the ability to contest the Commission’s findings or the remedies it imposes, which is why ignoring a Section 337 complaint is almost always a mistake, even for companies with no U.S. assets.
What the Commission Can Order
When the Commission finds a violation, it has three main enforcement tools. Before issuing any of them, it must weigh four public interest factors: effects on public health and welfare, competitive conditions in the U.S. economy, production of similar articles domestically, and the impact on consumers.6United States International Trade Commission. Section 337 – Building the Record on the Public Interest In rare cases, the Commission may decline to issue any order at all if the public interest weighs heavily enough against relief.
Limited Exclusion Orders
A Limited Exclusion Order (LEO) blocks the specific infringing products of the named respondents from entering the United States. Customs and Border Protection enforces the order at every port of entry. This is the most common Section 337 remedy and is tailored to the parties and products in the investigation.
General Exclusion Orders
A General Exclusion Order (GEO) is broader. It blocks all infringing articles from importation regardless of who manufactures or imports them. The Commission issues a GEO when it finds a pattern of violation and determines that identifying the sources of infringing products would be difficult.1Office of the Law Revision Counsel. 19 USC 1337 – Unfair Practices in Import Trade A GEO is particularly valuable when an infringement problem involves numerous small manufacturers that could easily rebrand or reorganize to evade a limited order.
Cease and Desist Orders
Exclusion orders only stop goods at the border. To reach infringing inventory that already sits in U.S. warehouses, the Commission can issue a Cease and Desist Order directing named respondents to stop selling, marketing, or distributing those products. Violations carry a daily civil penalty of the greater of $100,000 or twice the domestic value of the articles sold or imported that day in violation of the order.1Office of the Law Revision Counsel. 19 USC 1337 – Unfair Practices in Import Trade Those penalties accumulate quickly.
Temporary Relief During the Investigation
A complainant can also petition for temporary exclusion or temporary cease and desist orders while the investigation runs. The Commission must rule on a temporary relief petition within 90 days of publishing its notice of investigation, with a possible 60-day extension for more complicated cases.1Office of the Law Revision Counsel. 19 USC 1337 – Unfair Practices in Import Trade The standard mirrors preliminary injunction practice in federal court: likelihood of success on the merits and irreparable harm. The Commission may require the complainant to post a bond to protect the respondent if the investigation ultimately finds no violation, and the respondent can continue importing during the temporary exclusion period by posting its own bond in an amount the Commission sets.
What Happens After the Final Determination
A final determination is not immediately final. A 60-day review period begins, during which the U.S. Trade Representative, exercising authority delegated from the President in 2005, can disapprove the determination for policy reasons.7Office of the United States Trade Representative. USTR Statement on Section 337 Review A disapproval strips the Commission’s orders of force. If the USTR takes no action, the determination becomes final when the 60 days close.1Office of the Law Revision Counsel. 19 USC 1337 – Unfair Practices in Import Trade Disapprovals are rare but do happen, most often in investigations that touch broader trade policy or diplomatic concerns.
During the review period, respondents may continue importing by posting a bond with Customs and Border Protection in an amount set by the Commission.3U.S. International Trade Commission. 337 Investigations Frequently Asked Questions If the determination stands, that bond can be forfeited to the complainant.
Any party adversely affected by a final determination has 60 days to appeal to the U.S. Court of Appeals for the Federal Circuit.1Office of the Law Revision Counsel. 19 USC 1337 – Unfair Practices in Import Trade The Federal Circuit reviews the Commission’s legal conclusions de novo and its factual findings for substantial evidence, the standard used for other federal agency determinations.
ITC Versus Federal District Court
Companies facing infringing imports often have to choose between filing at the ITC, filing in federal district court, or doing both at once. Three differences drive that choice.
The first is jurisdiction. Federal courts exercise personal jurisdiction over parties and need power over the defendant to enter a binding judgment. The ITC exercises in rem jurisdiction over the imported articles themselves. Congress designed Section 337 precisely because foreign manufacturers committing unfair acts against U.S. industries are often beyond the personal reach of U.S. courts.8House Committee on the Judiciary. Testimony of Deanna Tanner Okun Regarding Section 337 The Commission can issue exclusion orders even when no one knows who is making the infringing products.
The second is remedies. The ITC has no authority to award monetary damages. There are no lost profits, no reasonable royalties, no enhanced damages for willful infringement. A complainant that needs money has to go to district court, which is why many companies file in both forums simultaneously.
The third is speed. District court patent cases routinely take three to five years to reach trial. ITC investigations historically wrap up in under 15 months, and even the longer modern investigations rarely stretch beyond two years. For a company watching infringing imports erode its market share month after month, that timeline is often the deciding factor.