Section 337 Actions Before the ITC: Latest Forum of Choice for Efficient Resolution

Pursuing and Defending IP Litigation Before the International Trade Commission

Recording of a 90-minute premium CLE webinar with Q&A

Conducted on Thursday, October 23, 2008

Course Materials


The International Trade Commission (ITC) is becoming a preferred forum for litigating intellectual property disputes because it allows IP owners to take advantage of often-overlooked trade laws to protect their valuable rights.

The ITC has the power to levy the strong deterrent of excluding a foreign infringer from the American market. Further, since the Supreme Court’s ruling in eBay v. MercExchange, it is more difficult to obtain injunctive relief for patent infringement in federal court.

A clear understanding of the risks and rewards of IP litigation before the ITC is critically important as globalization of production, distribution and consumption of goods continues to increase.

Listen as our authoritative panel reviews the ITC and its authority — and how to strategically manage a Section 337 action before, during and after litigation.



  1. Advantages and disadvantages of litigation before the ITC
    1. Using the ITC as a strategic weapon (advantages to litigating at the ITC)
    2. Potential disadvantages to litigating at the ITC
  2. § 337 investigation/action
    1. Brief overview of § 337 of the Tariff Act
    2. Complaint
    3. Considerations for respondents pre-institution of the investigation
    4. Investigation
    5. Discovery
    6. Hearing before ALJ (like trial)
    7. ALJ determination, can be appealed to ITC commissioners
    8. Appeal of final determination to Federal Circuit
  3. Limitations
  4. Customs enforcement of § 337 orders
    1. Exclusion orders
    2. Customs instructions to ports
    3. Certification
    4. Communication with Customs
    5. Tracking sources of potentially infringing goods


The panel will review these and other key questions:

  • What are the strategic advantages — and disadvantages — for IP owners of pursuing litigation before the ITC?
  • What factors should counsel consider before pursuing a Section 337 action before the ITC?
  • What are the best practices to follow after deciding to pursue a Section 337 action?
  • How does U.S. Customs enforce ITC orders?

Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.


Barbara A. Murphy
Barbara A. Murphy
Miller & Chevalier

She has over 25 years of experience in Section 337, antidumping and customs. She handles all aspects of Section 337...  |  Read More

Jeffrey R. Whieldon
Jeffrey R. Whieldon
Of Counsel
Fish & Richardson

He focuses on patent litigation and Section 337 investigations before the ITC. He has actively worked on close to a...  |  Read More

Arthur Wineburg
Arthur Wineburg
Akin Gump Strauss Hauer & Feld

He focuses on intellectual property protection, and handles patent, trade secrets and other IP and trade regulation...  |  Read More

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