A Section 337 investigation is an administrative proceeding at the U.S. International Trade Commission that can bar infringing goods from entering the United States. It is not a lawsuit and the ITC is not a court. Under 19 U.S.C. § 1337, the Commission investigates unfair acts in importation and, if it finds a violation, orders U.S. Customs and Border Protection to stop the articles at the border.
That is the whole trade-off in one sentence. The ITC cannot award you a dollar. It can shut off a competitor’s supply into the largest consumer market in the world, and it can do it in about a year and a half.
The Commission’s remedies are in rem. They operate against the articles, not against a defendant’s bank account, which is why personal jurisdiction problems that would sink a district court case against an offshore manufacturer often do not arise here.
Three remedies matter:
What the Commission cannot do is compensate you. No lost profits, no reasonable royalty, no attorney fees. If you want money you file in district court, and most complainants do exactly that in parallel.
Speed is the first reason. The assigned administrative law judge sets a target date within 45 days of institution under 19 C.F.R. § 210.51, typically 16 to 18 months to final determination, and the Commission holds to it. District court patent cases routinely run three to five years.
Leverage is the second. An exclusion order is an existential threat to a hardware business in a way a damages verdict is not, and the threat lands well before the final determination because supply chains have to plan around it.
The third reason is doctrinal and underappreciated. eBay v. MercExchange (2006) made injunctions hard to get in district court by imposing the four-factor equitable test. That test does not apply at the ITC. The Federal Circuit confirmed as much in Spansion, Inc. v. ITC (2010): exclusion is the statutory remedy, and the Commission instead weighs the public interest factors in § 1337(d)(1), namely public health and welfare, competitive conditions in the U.S. economy, U.S. production of like articles, and U.S. consumers. Those factors have blocked relief only a handful of times, generally where the excluded article was a medical device or a critical input with no substitute.
There is also no analogue to the one-year time bar on inter partes review that follows a district court complaint. And a respondent sued in both forums has a statutory right under 28 U.S.C. § 1659 to stay the district court case until the ITC proceeding ends, which is usually what happens.
Section 337 is a trade statute, not a patent statute. Its purpose is protecting an American industry, so there has to be one to protect. This is the requirement that most often decides who can use the forum at all.
The test has two prongs. The technical prong requires that the complainant’s own articles actually practice at least one claim of the asserted patent. The economic prong, in § 1337(a)(3), is satisfied by any of three showings as to those articles:
Subsection (C) is the contested one. It is what lets a company with no factory qualify, and it is the door through which non-practicing entities try to walk. The Commission and the Federal Circuit have narrowed that door considerably: licensing investment must be tied to the asserted patents and must be production-oriented rather than purely revenue-driven, and litigation expense alone does not count. InterDigital v. ITC (2012) and Motiva v. ITC (2013) mark the poles. NPEs can reach the ITC, but not easily and not on the strength of a demand-letter campaign.
Note the asymmetry: no domestic industry showing is required for non-statutory unfair acts such as trade secret misappropriation, though the complainant must still show injury to a domestic industry.
A complainant files a complaint with the Commission. Within 30 days the Commission votes on whether to institute, and institution is close to automatic if the complaint is procedurally sufficient. The case is assigned to an administrative law judge, discovery runs on a compressed schedule, and the ALJ holds an evidentiary hearing and issues an initial determination.
The Commission then decides whether to review the ID. It can adopt, modify, or reverse it, and it separately takes evidence on remedy, the public interest, and bonding. If the Commission finds a violation and issues an order, a 60-day Presidential review period begins. The authority has been delegated to the U.S. Trade Representative since 2005. During those 60 days the respondent may keep importing under bond.
Disapproval is rare. It has happened six times, and only once since 1987: in August 2013 USTR Froman disapproved the exclusion order in Certain Electronic Devices against Apple, on policy concerns about standard-essential patent holdup. After Presidential review, appeals go to the Federal Circuit.
The Commission also runs a 100-day pilot program, formalized in its rules, letting the ALJ resolve a potentially dispositive issue such as domestic industry early rather than after a full record.
Two decisions define how far § 1337 extends.
In TianRui Group Co. v. ITC (Fed. Cir. 2011), the court held that the Commission could reach trade secret misappropriation that occurred entirely in China, because the statutory focus is the act of importing into the United States, not where the unfair conduct happened. That makes § 1337 one of the few effective tools against offshore trade secret theft.
In Suprema, Inc. v. ITC (Fed. Cir. 2015) (en banc), the court upheld an exclusion order where the imported article did not infringe on arrival and direct infringement occurred only after importation, through the importer’s inducement. “Articles that infringe” was read to cover that sequence. Together the two cases show the Commission’s jurisdiction keyed to the border crossing rather than to a tidy territorial theory of the underlying wrong.
What is an ITC Section 337 investigation? It is an administrative proceeding at the U.S. International Trade Commission under 19 U.S.C. § 1337, aimed at unfair acts in the importation of articles into the United States. Patent and trademark infringement are the most common allegations. The Commission does not award damages. Its remedies are exclusion orders directing U.S. Customs to bar the goods at the border, and cease-and-desist orders against inventory already in the country.
Can the ITC award damages for patent infringement? No. The Commission has no authority to award money damages of any kind. Its power is remedial and forward-looking: it can keep infringing articles out of the United States and stop the sale of infringing inventory already here. A patent owner who wants damages must sue in federal district court, which is why parallel ITC and district court cases are common.
What is the domestic industry requirement in a Section 337 case? A complainant asserting a statutory IP right must prove a domestic industry exists or is being established relating to the protected articles. It has two prongs. The technical prong requires that the complainant’s own products practice the asserted patent. The economic prong under 19 U.S.C. § 1337(a)(3) requires significant investment in plant and equipment, significant employment of labor or capital, or substantial investment in engineering, research and development, or licensing.
How long does a Section 337 investigation take? Much faster than district court. The administrative law judge sets a target date within 45 days of institution, typically 16 to 18 months from start to final determination. An administrative law judge holds an evidentiary hearing and issues an initial determination, the Commission reviews it, and any exclusion order then goes through a 60-day Presidential review period before it becomes final.
Going further: ITC Section 337 exclusion orders, how the process works .
This page is general legal information, not legal advice, and it does not create an attorney-client relationship.
The Federal Circuit held that a limited exclusion order cannot bar downstream products from companies never named as respondents, reshaping ITC remedy strategy.
The Federal Circuit held eBay's four-factor test does not govern ITC exclusion orders, which issue on a violation unless public-interest factors say otherwise.
The Federal Circuit held that 'crucial' off-the-shelf components cannot prove a domestic industry; the economic prong of Section 337 demands a quantitative showing of real US investment.
The Federal Circuit upheld the ITC's import ban on certain Apple Watch models, validating Masimo's pulse-oximetry patents and a domestic industry built on prototypes.
The Federal Circuit upheld an exclusion order against Comcast's set-top boxes, holding the ITC may act even where the inducing conduct is entirely domestic and Comcast itself imported nothing.
The Federal Circuit held that the ITC cannot bar infringing digital data transmitted electronically across the border, because Section 337 reaches only material things.
Sitting en banc, the Federal Circuit held that the ITC may bar imports used to induce infringement of a method claim performed only after the goods cross the border.
