Complainant and respondent representation in Section 337 investigations before the U.S. International Trade Commission, the fast, injunctive forum where infringing imports are stopped at the border.
Section 337 of the Tariff Act of 1930 lets a U.S. rights holder ask the International Trade Commission to bar infringing products at the border, and the Commission does so on a schedule no district court can match. For a company watching infringing imports erode its market, that speed and the prospect of an exclusion order make the ITC one of the most powerful tools in intellectual-property enforcement. For an importer or manufacturer named as a respondent, it is one of the most dangerous.
The ITC is an administrative forum rather than an Article III court, and it plays by its own rules. There is no jury and no money damages. The relief is injunctive, meaning exclusion orders directed at U.S. Customs and cease-and-desist orders directed at domestic conduct. Discovery is intense and compressed, a hearing typically arrives within about a year, and the Office of Unfair Import Investigations may participate as a third party representing the public interest. A complainant must also prove a domestic industry in the protected articles, a threshold that frequently decides if a case can proceed at all.
We handle Section 337 matters from either side of the caption, and we coordinate them with the parallel district-court litigation that so often runs alongside. The work is technical and fast. A single partner stays accountable for the strategy across both tracks and runs claim construction, domestic industry, remedy, and public-interest arguments as one campaign against the Commission's clock.
Preparing and prosecuting Section 337 complaints for rights holders. We build the case for institution, frame the asserted patents, trademarks, or trade secrets, and press for the exclusion order that halts infringing imports.
Defending importers, manufacturers, and downstream sellers named as respondents, with non-infringement, invalidity, design-around, and public-interest arguments marshalled to narrow, delay, or avoid an order.
Building or contesting the domestic-industry showing, the economic and technical prongs that establish or defeat a complainant's right to relief and often the most decisive issue in the investigation.
Managing the compressed, document-heavy discovery and the evidentiary hearing before the Administrative Law Judge on the ITC's accelerated calendar, where a misstep cannot be repaired on a leisurely timeline.
Litigating the scope of limited and general exclusion orders, cease-and-desist orders, and bonding during the 60-day Presidential review period, along with the public-interest factors that can shape or stay the remedy.
Synchronizing the ITC investigation with co-pending district-court litigation seeking damages, through statutory stays, shared claim construction, and a single strategy so the two tracks reinforce rather than undercut each other.
A limited exclusion order bars the named respondents' goods; a general order bars them from any source, granted only where a limited order would be circumvented or a pattern of violation obscures the source. A cease-and-desist order reaches inventory already in the country, with a daily civil penalty for violations.
Interrogatories and document requests are answered within ten days under Commission rules, against thirty in district court, and the target date set after institution puts the hearing roughly nine months out. The complainant has usually spent a year preparing; the respondent has twenty days to answer the complaint.
The economic prong needs significant investment in plant and equipment, employment of labor or capital, or substantial exploitation of the right through engineering, research or licensing. In 2025 the Federal Circuit held sales, marketing and distribution spending counts under the labor-and-capital prong, opening the forum to companies that manufacture abroad.
The Commission weighs four statutory factors before granting relief: public health and welfare, competitive conditions and domestic production, and the effect on US consumers. Since 2011 the complaint must carry a public-interest statement, and the judge may be told to take evidence on it. Denials are rare.
The initial determination goes to the Commission, then to the Presidential review delegated to the U.S. Trade Representative since 2005, then to U.S. Customs. During the 60-day review, imports continue under a Commission-set bond. Disapprovals are rare, the last dating from 2013; appeals go to the Federal Circuit.
A respondent can stay a parallel district-court case until the Commission's determination is final by asking within 30 days of being named at the ITC or of the court filing, whichever is later. The Commission's rulings do not bind the court, but its record follows the case there.
The case is largely won before the complaint is filed: claim charts against the accused imports, the economic and technical domestic-industry showing assembled to pleading-proof strength, respondents mapped through the supply chain. The Commission ordinarily decides whether to institute within 30 days of filing, and there is no amending your way out later.
Once the Notice of Investigation publishes in the Federal Register, the Administrative Law Judge sets a target date and the calendar becomes the strategy. Discovery, contentions, claim construction, and expert reports compress into months, with the Office of Unfair Import Investigations at the table for the public interest.
An evidentiary hearing before the ALJ, with no jury, live experts, and confidential business information under protective order, followed by an initial determination on violation. Non-infringement, invalidity, and the domestic-industry attack are tried at full depth on a schedule district courts do not attempt.
The Commission reviews the ID, weighs the statutory public-interest factors, and shapes the remedy: a limited or general exclusion order, cease-and-desist orders, and bonding. The order then sits for the 60-day Presidential review before U.S. Customs enforces it at the border, while any appeal runs to the Federal Circuit.
The ITC does not award damages. It awards the border, and the border does not negotiate.
A Section 337 investigation is an action before the U.S. International Trade Commission to stop the importation of products that infringe intellectual property rights or otherwise involve unfair acts in import trade. It is named for Section 337 of the Tariff Act of 1930, and its central remedy is an exclusion order directing U.S. Customs to bar the infringing imports at the border. It does not award money damages.
The ITC is an administrative forum with its own procedure, and it moves on a markedly faster schedule than an Article III court. Most investigations reach a hearing within roughly a year and a final determination not long after. The ITC cannot award money damages; its remedies are exclusion orders and cease-and-desist orders aimed at imports. Because the relief is injunctive and the pace is rapid, many patent owners pursue the ITC in parallel with a district-court action seeking damages.
The principal remedies are a limited exclusion order, which bars the named respondents' infringing imports, and a general exclusion order, which bars infringing imports from any source where the circumstances justify it. The Commission may also issue cease-and-desist orders against domestic stockpiles and sales. Any remedy is subject to a 60-day Presidential review period before it takes final effect, and to bonding during that interval.
To obtain relief under Section 337, a complainant must show that a domestic industry exists or is in the process of being established in articles protected by the asserted intellectual property. The requirement has an economic prong, meaning investment in plant, equipment, labor, or the exploitation of the IP through engineering, research, or licensing, and, for IP-based claims, a technical prong tying that investment to the protected articles. Establishing domestic industry early is often decisive.
Yes. We advise rights holders bringing Section 337 complaints to halt infringing imports, and we defend importers, manufacturers, and downstream sellers named as respondents. On the complainant side the focus is the complaint, domestic industry, and the case for exclusion; on the respondent side it is non-infringement, invalidity, design-arounds, and the public-interest and remedy arguments that can narrow or avoid an order. We coordinate with technical and registered patent counsel where that admission is required.
They are filed together more often than not: the ITC for the exclusion order, the district court for damages the ITC cannot award. A respondent named in both may require the district court to stay its case until the Commission's determination becomes final, provided it moves within 30 days of being named at the ITC or within 30 days of the court filing, whichever is later; the stay is mandatory once requested in time. The Commission's findings on infringement and validity have no preclusive effect in the court, but the ITC record is transmitted to the court and is admissible when the stay lifts, so positions taken on claim construction and invalidity at the ITC are the positions the court will see. We brief both tracks from one set of contentions for that reason.
Prosecution and defense of patent infringement actions in federal district court, through claim construction, infringement and validity, and the remedies that follow a verdict.
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Explore →Reviewed by Jonathan D. Herpy, Sr., Senior Partner · Last updated October 2026 · Educational overview · Not legal advice
One partner is accountable for the whole matter, and you have that partner's direct line. Chicago, London, and Dubai work to the same standard.