Morgan Lewis Seminars

Section 337 Investigations at ITC - Beijing

Thursday, December 20, 2018
01:30 PM - 05:00 PM China Standard Time

Morgan Lewis will be co-hosting seminars in Shenzhen, Shanghai and Beijing with the China Academy of Chief Legal Officer (CACLO). IP partners Eric Namrow and Shaobin Zhu, associate Ric Macchiaroli, and China associate Jensen Xu will present to Chinese companies about how to navigate Section 337 investigations and other issues before the US International Trade Commission (ITC).

Topics will include:

  • ITC Essentials.  For audience members who have experience with section 337 investigations, this portion of the presentation will provide a short refresher on the essentials of section 337 Investigations before the International Trade Commission.  For audience members who may not be aware of, or have limited experience with, section 337 investigations, this portion of the presentation will introduce them the essential aspects (nomenclature, rules, typical deadlines, remedies, etc.) of these fast-paced cases.
  • The First 60 Days.  The complainant always starts with a significant advantage over the respondents.  The first two months after a complaint is filed is critical to closing the preparation gap between the parties.  This portion of the presentation will take the audience through the first 60 days of a hypothetical investigation—from retaining outside legal counsel, identifying and collecting relevant documents, responding to the complaint, and retaining qualified expert witnesses—and discuss how to identify the issues which matter, and ignore costly distractions.
  • Discovery at the ITC.  One of the most challenging aspects of section 337 investigations for China-based companies can be discovery.  American-style discovery can be very invasive, and discovery at the ITC is particularly far-reaching.  This portion of the presentation will introduce audience members to the challenges of discovery in a section 337 Investigation, and provide practical tips on how to prepare for discovery, how to respond to discovery requests, and how the discovery rules can be used to strengthen and advance your position.
  • Responding to a Remedial Order.  Your company or your client is the subject of an ITC exclusion order.  Is there anything they can do?  This portion of the presentation will take the audience through the various remedial orders available at the ITC, their effect, and what a respondent (or third party importer) can do to challenge the application of an order.  The discussion will include options available before the ITC (e.g. modification proceedings) and U.S. Customs and Border Protection (e.g. a request for an administrative ruling or a protest against exclusion), as well as a description of the advantages and disadvantages of each.
  • Bringing a Section 337 Investigation.  As China-based companies continue to gain strength in the United States market, many are obtaining and asserting U.S. intellectual property rights.  This section of the program will describe the unique requirements to file a section 337 complaint at the ITC (such as the “domestic industry” requirement), the causes of action that can form the basis of a complaint, and some best practices for maximizing the chance for success as a complainant.
  • Consent order and Default order.  In Section 337 investigation, in addition to the settlement, the parties may also terminate the investigation by agreeing the consent order. The consent order is similar to the settlement agreement, but retains the jurisdiction of USITC. But if the defendant did not respond to the complaint, the plaintiff may apply to the court for a default order.
  • Trade Secret Claims. This section will discuss on best practices to defend a trade secret claim at the ITC.


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