Shen Jianping lawyers America ITC 337 investigation
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/Author:
Aaron Lewis
China target maximum intellectual property infringement case in 2007, a Wenzhou trial.In this Chinese private enterprise CHINT group and the world of low voltage electrical first giant Schneider contest, Schneider was Wenzhou City Intermediate People's Court of First Instance judgement to immediately stop the infringement of intellectual property, and compensate for the CHINT group of more than 330000000 yuan.One of the plaintiffs' attorneys in the case is the wonderful Shen lawyers.To achieve victory, the battle of wits let us as the acme of perfection.
The 337 survey USA ITC Compared with the American in federal court in patent infringement litigation
Shen JianpingZhejiang Chengsheng law firm partner
We in the International Law Institute (InternationalLawInstituteTheoretical training) after 2 and a half months, mid September according to plan into the big law firms in Washington for a period of three months of internship.I entered the law firm (PaulHastingsLawFirm) intellectual property litigation practice, at headquarters in Losangeles, a 18 office in the world (Shanghai, Beijing and Hongkong three office in China), a total of more than 1200 lawyers, intellectual property litigation is one of the main business at, my mentor MichaelD.Mr. Bednarek is a senior partner at, was named national outstanding intellectual property lawyer, he is doing an intellectual property lawyer before the patent examination officials American patent and trademark office.He led the Washington office of intellectual property agent a lot in USA International Trade Commission (ITC) investigation of 337 cases and in the federal court's patent infringement litigation, in dealing with cases of infringement of intellectual property rights (especially patent infringement cases) has accumulated rich experience, has the unique litigation skills and strategies, writing many professional articles and done a lot of lectures. At rich intellectual property litigation case and mentor MrBednarek attention to the China lawyer gave me a lot of actual combat opportunity.Starting from the first day of practice, MrBednarek agreed me to participate in their hand all kinds of intellectual property right (patent litigation in the majority).After I sign a confidentiality contract with big, can read the data files in the office, in case discussion and MrBednarek and other lawyers conference calling.After nearly 2 months of USA International Trade Commission (ITC) in direct contact with the 337 survey and America federal court patent infringement case, I have a more intuitive, clear understanding of the relationship between these two kinds of cases of infringement of intellectual property rights and their.
One, USA International Trade Commission (ITC) of the 337 survey and American federal court of intellectual property litigation is the two big legal way America protection of intellectual property rights
According to the American lawyers introduction, Usa Inc attaches great importance to intellectual property rights (more common is the patent and trademark), when assessing a company's assets, the value of intellectual property holds the very great proportion.Just because the patent, patent, means that the patentee has to exclude others from making, using, selling or offering for sale containing patent products or product manufacturing method patent rights, can and will rival excluded from patent product market, currency market or consumer market, the patentee we can own the market.
Although USA patent law the law code, but it is a case law country, the statute law understanding usually still want to clear through the concrete case.So, in USA, range through the patent infringement litigation to clear its patent rights, draw between oneself and competitor's market share or obtain excess profit has become the patentee legal weapons commonly used. According to the USA "1930 year tax law" section 337th (19U.S.C.1337), USA patent law and other intellectual property laws and jurisprudence, the legal protection of intellectual property rights American in two ways: 1, intellectual property rights or get exclusive licensing by the licensee to the USA International Trade Commission (ITC) investigation of 337 apply, to protect its intellectual property not subject to import the infringement in unfair behaviour, thus excluding imports of products containing the intellectual property rights. 2, intellectual property rights or get exclusive licensing by the licensee can sue to the federal court, asking the court to ban, economic losses of the obligee to compensation and punitive indemnity. So, if a company does have a good patent portfolio, through the investigation of 337 it is easy to foreign competitors out of the door to go abroad, to win the market exclusive.If you want to obtain the compensation or stop the infringement from the infringement person there, is required by the federal court for patent infringement litigation case.These two kinds of tort litigation channels constitute the two ways America legal protection of intellectual property, they can exist in parallel, independent trial.A good case in point is that: in late September I got a American Georgia federal court for the Northern District of a patent infringement lawsuit complaint, the plaintiff is a Usa Inc, the defendant has more than 100, of which 6 are China Company, I immediately into the American International Trade Committee (ITC) official website search a patent number 337 investigations, the results found that the plaintiff in early this year on 30 May ITC proposed 337 application for investigation, and the ITC has launched an investigation program, the same 6 China enterprises on the list in 337 cases of the defendant.So, in American, if the obligee that infringe the intellectual property rights, both to obtain the ban, it wants to obtain reparations, put forward 337 application for investigation and federal court litigation will respectively. Two, USA ITCComparison of 337 investigations and American in federal court in patent infringement litigation ●USA ITCThe 337 investigation The so-called "337 investigation" refers to the International Trade Commission (Internation, AmericanTradeCommissi Lu n, referred to as "ITC") according to the American "1930 year tax law" section 337th (19U.S.C.1337), should be USA intellectual property and obtain other license applicants, investigation initiated against the import trade of intellectual property infringement acts of unfair competition."337 investigation" because of its "1930 year tax law" in accordance with the provisions of section 337th and its name, also called "the 337 cases (337Case) "," section 337 investigation (InvestigationUnderSection337)",Some of the data USA sometimes appear "Section337Litigation "(" 337 action ")."337 investigation" most involved in patent infringement, trademark, copyright and minority relates to integrated circuit layout of infringement, there are very few investigations involving commercial secrets. USA International Trade Commission (ITC) is a set up by Congress, judicial federal agencies, quasi independent investigation, have right of a wide range of trade related affairs.It has three responsibilities: implement American trade remedy laws; on tariffs, international trade and competition issues to the president, American trade representatives and Congress to provide independent, timely, reliable data and professional analysis; maintenance America unified tariff.The anti-dumping, countervailing, safeguard measures (i.e. "two against one") and 337 investigation belongs to the implementation America trade remedy legal responsibilities.ITC set up four institutions: the Committee (6 people), office of unfair import investigations (OUII, the existing 14 lawyers), administrative law judges (4) and the office of the general counsel. USA International Trade Commission (ITC) basic program conducted 337 investigations are: the plaintiff submitted to the ITC application, by the office of unfair import Survey (OUII) within 30 days of the application is in accordance with the start request for the review, the review results that accord with, submitted to the Committee for a vote, if the majority of members agreed to start the survey, by the Commission transferred the case to the administrative judge, foreign ITC announced on its official website, at the same time to the defendant and the defendant in USA embassies and consulates served notice of investigation, so far, 337 investigation was officially launched.Administrative law judges hearing will make a preliminary decision, submitted to the Committee for review, the Committee put forward examination opinions within 45 days, review committee to become ITC final decisions.If it does not review, 45 days after the preliminary decision of administrative law judge automatically becomes the ITC final decisions.If the final decision that the defendant violated Section 337, will the decision issue an exclusion order and a ban, and must be reported to the presidential review, the president approved in 60 days, or not without approval, ITC final decision takes effect; the president for policy reasons can veto ITC the final decision, once the veto, the end of the case.But the veto is very rare.If the defendant refuses to accept the decision on the final section 337 violation, in the final decision within 60 days from the date of the Federal Circuit Court of appeals proceedings.During the proceedings, does not affect the final decision execution. ● America federal court for patent infringement litigation American state and federal courts is the system.The federal courts include FederalDistrictCourt (Federal District Court), CourtOfAppealsFor那个FederalCircuit (Federal Circuit Court of Appeals) and U.S.SupremeCourt(Supreme Court) three levels of courts.America patent, trademark and copyright infringement of intellectual property rights belong to federal court jurisdiction over cases (commercial secrets as the case to federal court or state court's jurisdiction),A trial in the Federal District Court, appeal in the Federal Circuit Court of appeals.Most of the previous patent litigation cases in California district (CentralDistrictOfCalifornia), Texas East (EasternDistrictOfTexas (Northern), northern CaliforniaDistrictOfCalifornia, a Delaware (District)OfDelaware, Wisconsin (Western West)DistrictOfVirginia (Eastern Wisconsin) and EasternDistrictOfVirginia) and the Federal District Court, the court is now popular Texas District Court in Wisconsin and West Court, because the court considered to tend to the patentee.Of course, the defendant according to the court has no jurisdiction over or under certain circumstances for jurisdiction of convenience considerations and other reasons also occurs to the jurisdiction of the case, but relatively rare. Comparison of the USA ITC 337 case investigation and America in federal court in patent infringement litigation There are many different points, but the main difference is that: 1, the case start procedure and legal document service The plaintiff to America International Trade Commission (ITC) proposed 337 investigation of the application, the unfair import Survey Office (OUII) examination, and reported to the committee vote, vote by a majority of the members agreed to formally started.A lot of ITC to foreign parties served 337 case files, mail is the common way, so the delivery time is short, fast. The plaintiff to the federal court, filing America court is loose, and the litigation fee is cheap, according to the number of cases and not the plaintiff claims to collect litigation costs, generally a case in a few hundred dollars, so in the America court to start the litigation is very easy.After the court has accepted the case, according to the bilateral judicial agreement America and accused the country (if any) served to foreign parties; if there is no bilateral legal agreements, often through diplomatic channels, the delivery time is long, slow speed. 2, the trial of the case body and the applicable law 337 cases by the America International Trade Commission (ITC) within the administrative judge, not a jury.The trial procedures applicable law: the Administrative Procedure Act (AdministrativeProcedureAct, referred to as "APA"), the Committee on rules (CommissionRules) and ITCRulesOfPracticeAndProcedure, although the federal rules of evidence (FederalRulesForEvidence is also used, but no) used as the federal courts as a strict.The entity applicable law is mainly USA: "1930 year tax law" section 337th (19U.S.C.1337. The federal court in two ways: the sole judge trial (BenchJudge (Jury) and a jury trialTrial).From the actual case, the plaintiff selected jury case number.The federal court proceedings law applies to is: the Federal Civil Procedure Law (FederalRulesForCivilProcedure (Federal), the federal rules of evidenceRulesForEvidence).In fact, the applicable law is the main body of USA patent law. 3, the parties USA International Trade Commission (ITC) of 337 cases of the plaintiff should have two conditions: first, the intellectual property or obtain the exclusive license; second, the plaintiff must prove that in the presence of related to the protection of intellectual property products industry or USA (the industry) is in the process of.In the case of the trial, in addition to the plaintiff and the defendant, and unfair import Survey Office lawyers as the third party to appear in court, whose duty is to represent the public interests USA, their views have a substantial influence on the judge. In the federal court cases, as long as it is the intellectual property or obtain the exclusive license of the person can be the plaintiff.In addition to the plaintiff and the defendant in litigation, no public interest cases, pure lines between main civil disputes. 4, remedies and the executing organ In violation of Section 337 relief is an exclusion order and a ban, no money damages.Exclusion order is divided into general exclusion order and limited exclusion order.The executive organ is the customs. In the general exclusion order, the customs will ban all violations of intellectual property rights (including goods infringing products and contains a downstream products infringing products into the territory of USA), regardless of the source from which country.That is the object of sanctions is not limited to be listed as the importer, its lethality one can imagine; in the limited exclusion order, the customs import ban from the defendant and patent products belong to the same product customs classification.The result is prohibited in the inventory sales excluding has American infringing products entry or, to competitors out of the market, but cannot obtain financial compensation directly. The federal court for patent infringement remedies: ban (to stop infringement), and judgment of infringement by the defendant to the plaintiff compensation for economic losses, if the infringement is intentional, also ordered the defendant to the plaintiff, infringement of punitive damages (the maximum is three times the amount of loss, many of the convicted cases sentenced to three times).The federal court's decision by court internal affairs executive enforcement. 5, trial time USA International Trade Commission (ITC) of 337 cases will be completed in 12-15 months to start later in general (and complex cases will be extended).