| Section 337 initially refers to the Section 337 of the "Tariff Act of 1930", it is a unique provision in the United States trade law empowering the United States International Trade Commission(ITC) to determine whether imported articles should be barred from entering the United States because of unfair practices in import trade. Over the years, Section 337 has developed into one of the primary means for American companies to protect their intellectual property rights. Section 1337 of the Omnibus Trade and Competitiveness Act of 1988, as amended by 1994 URAA, declare unlawful of "unfair methods of competition and unfair acts in the importation of article into the United States, or in the sale of such article by the owner, importer or consignees, the threat or effect of which is (i) to destroy or substantially injure an industry in the United States; (ii) to prevent the establishment of such an industry; or (iii) to restrain or monopolize trade and commerce in the United States."The body can be divided into five parts:The first part is a part introduction. On the topics raised and the significance of the brief analysis, and expounded the section 337 of the Origin and History. The section 337 from the section 316 of "Tariff Act of 1922", and been famous in the "Tariff Act of 1930". It has been four major changes in 1974, 1979, 1988 and 1994. The overall trend can be summed up in ITC power magnification, the clarity of objects and the design of a system of the increasing rationalization.The second part gives the section 337 is a protection of the American industry. The section 337 can provide a rapid and effective remedy and relief measure for the infringement of intellectual property rights. By way of unfair methods of competition and unfair acts finds that the domestic industry finds that infringing products to the United States caused damage to domestic industries and other entities identified the elements of the United States to protect industries.It introduces the conflict between the section 337 and WTO rules in the Part III. At first, it analysis the conflict lies in the section 337 and GATT obligations. The focus of controversy is the question that the section 337 is a breach of the GATT Article 3 (4) of the principle of national treatment and 20(d) of the general exceptions. Although it were amended, the analysis show that the section 337 is still in many respects a violation of GATT Article 3 (4), for different treatment to imported products and domestic products. In the surface, the section 337 provides the Administrative Procedure Act that has resulted in the protection of the corresponding procedures. It does not seem to constitute "arbitrary" discrimination, but it has also led to the "unprovoked" discrimination. In the circumstances, there are the great differences in the current border protection measures. The United States section 337 are too stringent measures will undoubtedly arouse enormous controversy.Followed, it introduces the conflict lies in the section 337 and TRIPs. The focus of the conflict lies in whether the violation of the TRIPs,No.3, the national treatment and the TRIPs, Part 3,intellectual property enforcement. The paper points out that the TRIPs with the National Treatment is not the same to GATT Article 3 of the national treatment. TRIPs referred to the national treatment, is a requirement for national of other members of the treatment, shall not be less than its national. But the section 337, as a border protection mechanism, as long as the right people in the United States on intellectual property, Whether he is a national of the United States or foreign national, he received the same treatment. In other words, whether the company built in the United States or foreign countries, as long as they meet the United States on the "domestic industry", their protection is no difference. Therefore, the section 337 is in line with Article 3 of the TRIPs. From the provisions of the procedural requirements, the analysis shows that it is very difficult to judge the general duties of the conflict.Part IV analyzes that the United States abused the provisions on the section 337 and bring the impact on China. It introduces two cases: the United States Energizer Inc appeal to Chinese enterprises mercury-free alkaline battery patent case and the American Flexsys v. St. Austrian chemical Shandong Limited patent infringement case, and analysis the United States trade policy contained in the section 337. The section 337 show that the United States from free trade turn into protectionist trade policy. The change based on of two reasons : Firstly, economic background, due to the dollar as the core of a unipolar world gradually to the United States, Europe, Japan three pillars of the evolution of a multi-polar world, the United States trade deficit expanding, the United States repeatedly trend of protectionism; Secondly, in trade theory that in the 20th century, the 1970s, the rise of the strategic trade theory, the United States government for the implementation of the new policy of trade protectionism to provide a theoretical basis. In the Part V, the paper analyzes the corresponding strategy on the 337 investigations. It gives corresponding strategy from the national and government level, industry organizations level, exporters. Come to the conclusion that although the power of the investigation of the section 337 is great, it is not perfect. It is important and necessary that China raise the creativity and capacity-building ability of intellectual property. |
