by Alexander W. Koff, a partner in the Baltimore office of the law firm Whiteford, Taylor & Preston, LLP whose practice includes representing complainants and respondents before the ITC in Section 337 investigations.
Section 337 is codified at 19 U.S.C. § 1337. It provides a powerful trade remedy that helps to prevent, among other things, the infringement of a valid U.S. patent right. Recognizing this, companies are flocking to file Section 337 cases at the U.S. International Trade Commission (“USITC” or “Commission”).
The rise in Section 337 cases is due in no small part to the distinct advantages it offers. Compared to federal district court, Section 337 cases are decided by judges who specialize in intellectual property and unfair competition matters. Exclusion orders preventing the importation of infringing products into the United States, a key Section 337 remedy, is enforced directly by U.S. Customs and Border Protection. By contrast a winning plaintiff in federal court must enforce the award herself.
Perhaps most important, however, is that results can be obtained in relatively quick fashion. A Section 337 case typically may take 14 to 16 months, whereas a similar federal court case takes two to three years. In short, the USITC works hard to be an expeditious forum for parties. The recent decision in Inv. No. 337-TA-874, Certain Products Having Laminated Packaging, Laminated Packaging, and Components Thereof (“the 874 investigation”) underscores this effort.
On February 20, 2013, Lamina Packaging Innovations, LLC of Longview, Texas (a popular patent-licensing company outpost) filed a Section 337 complaint with the ITC. Lamina’s complaint alleges that some 15 respondents who make or use products with laminated packaging, including certain alcoholic beverages, electronics, personal healthcare products and toy products, are infringing two patents that provide for more environmentally-friendly packaging. Continue reading