Document Type

Article

Publication Date

2026

Abstract

Although a trade remedy, not an intellectual property rights statute, Section 337 of the Tariff Act of 1930 plays an important and controversial role in the enforcement of intellectual property rights in the United States. As a trade remedy, Section 337 is designed and intended to promote innovation and investment in the United States through support of statutorily defined domestic industries against unfair competition from infringing imported products. This Article analyzes Section 337 as a trade remedy from the perspective of intellectual property rights owners and innovators such as start-up companies, universities, individual inventors, and other research and development-focused entities. Small innovators face challenges from two types of predatory infringers: (1) large importers that, due to their size and resources, engage in patent holdout and (2) numerous small foreign infringers selling via online marketplaces. The trade remedy provided by Section 337 addresses such unfair competition in a manner unavailable in other fora and was specifically designed to do so. The evolution of Section 337’s statutory language to afford greater access to protections for such innovators establishes the legislative purpose to provide this type of facilitated remedy against infringing imports.

As US trade policy has moved away from free trade to a more realist approach to address such issues as forced technology transfer, rampant intellectual property rights infringement and the evolution of the international marketplace due to the development of the Internet and online marketplaces, Section 337 continues to provide options for promoting US innovation. This Article analyzes the development of Section 337 to consider the objectives identified by Congress when enacting and amending Section 337. Much of the debate around the appropriate scope of Section 337 occurs within the context of the ongoing discussion of the appropriate form of relief for patent infringement ( i.e., injunctive relief or damages) and focuses on the perspective of large importers or predatory infringers, typically large, technology-based companies that choose to manufacture abroad. This Article provides an in-depth evaluation of criticisms leveled at Section 337, the responses of the US International Trade Commission (USITC) thereto and the role Section 337 plays, in the context of US trade policy, in the enforcement of US IPR against infringing imports from both large and small predatory infringers.

This Article reframes the discussion to consider that, as a component of US trade policy, Congress intended for Section 337 to provide a remedy to small or nonmanufacturing innovators and specifically designed the requirements for obtaining Section 337 relief to achieve this goal. The promotion of innovation and investment in the United States is an historically central feature of US trade policy. As the United States starts to move away from a strict free trade policy to one intended to address some of the more mercantilist policies adopted by certain US international trade partners, Section 337 occupies a unique position as a mechanism specifically designed for such a purpose.

Publication Title

Vanderbilt Journal of Entertainment & Technology Law

Volume

28

Issue

4

First Page

653

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