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Hastings Law Journal

Abstract

This Note considers recent criticism of and efforts to reform section 337 of the Tariff Act of 1930. Section 337 provides administrative relief from unfair import practices through the International Trade Commission (ITC). These unfair import practices include the import of goods that infringe upon valid U.S. intellectual property rights. Congress amended section 337 in 1988 to ease access to the administrative forum for holders of intellectual property rights. By preserving some barriers to the forum, however, section 337 maintains a precarious balance between two conflicting policies: greater protection of U.S. intellectual property rights, and protection of U.S. industry and labor.

In 1988 a panel of the General Agreement on Tariffs and Trade (GATT) found section 337 in violation of the GATT because section 337 treats domestic infringing products more favorably than imported infringing products. This Note evaluates five proposals put forth by the U.S. Trade Representative to amend section 337 in response to the 1988 GATT panel report. The Author rejects four of the five proposals and ultimately concludes by recommending an option in which a respondent may elect to transfer a section 337 action to a district court at an initial stage of the proceeding. This allows a section 337 respondent to choose the judicial safeguards available in the district courts, rather than restricting such a respondent to the administrative procedures and remedies of the ITC. While not without its problems, this "initial transfer" option best preserves the balance between the conflicting policy goals embodied in the current section 337.

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