| Nowadays, with the continuous deepening of the economic globalization and regional economic integration, the coexistence of the multilateral trading system and regional trade groups becomes obvious; As a result, the status of foreign investment and trade in the United States'economy has been constantly strengthened. At the same time, Japan and Europe has also shown a strong momentum to catch up in the context of globalization and the information technology revolution wave, which forms a strong challenge to the United States; the former Soviet Union and Eastern European countries who have been busy with the economic transition have further widening the gaps with the United States; because of the adherence to the basic national policy of reform and opening up, China's comprehensive national strength has been greatly improved, and takes up a large market share in the labor-intensive international market. Faced with the new opportunities and challenges posed by the development and changes of the international economic environment, the United States made corresponding adjustments to its overall economic development strategy, namely, made "economic security" the core content of its strategic readjustment. Under the guidance of the pragmatic thinking, the new trade protectionism thought has proliferated in the United States government from top to bottom, and the functional recovery and expansion of Section 337 has objectively played a great role in the prosperity of this thought."Anti-dumping is under going, 337 has risen." While Chinese enterprises are busy with the anti-dumping investigations from all over the world, Section 337 investigations of the United States once again stir the sensitive nerve of the Chinese enterprises. Different from anti-dumping, violation of the United States'Section 337 can not be settled only by money (tax), the exclusion order issued by ITC will probably reject products of Chinese enterprises forever, and thus Section 337 investigations have greater lethality. As to the power of Section 337 investigations of the United States, insiders give such description:"If anti-dumping is conventional weapons against China's exports, then Section 337 investigations will be the weapons of mass destruction." Then, what kind of investigations is Section 337 investigation, and why domestic enterprises will be so affected?Section 337 is the short form of Section 337 of the United States Tariff Act of 1930, formerly known as《Smoot-Hawley Tariff Act》, evolved from Article 316 of the《United States Tariff Act of 1922》. After three times of large amendments by《United States Trade Act of 1974》《,Omnibus Trade and Competition Act of 1988》, as well as《Uruguay Round Agreements Act of 1994》, terms of the existing Section 337 formed the current pattern of a total of 14 provisions from paragraph (a) to (n). Section 337 was initially formulated in order to raise the tariffs of the United States, but the amended Section 337, gradually shifted to the regulation of unfair activities of infringement of intellectual property rights in foreign trade. From the specific content of the existing Section 337 terms, it can be roughly divided into two major parts: substantive provisions and procedural provisions. Paragraph (a) is the substantive provision, while almost all other provisions are procedural provisions of the Section 337 investigation. In accordance with the provision of Section 337 (a), the Commission must fully consider the following three elements in order to judge whether the imported products constitute a violation of the Section 337 standards, (1) the existence of unfair methods of competition and unfair acts; (2) the act is to destroy or substantially injure an industry in the United States), and (3) the existence of an industry or an industry is in the process of being established in the United States.According to Section 337 and its related regulations, the Section 337 investigations are conducted by the United States International Trade Commission (ITC). The investigations can be launched from the complaints to the ITC or through self-initiated manner by the ITC. If the investigations prove that the imported products of the respondent belong to the unfair activities provided by Section 337, the ITC would issue limited exclusion order, the Cease and desist order, or general exclusion order to the imported products which are complained to constitute infringements according to the needs of specific cases. In the case of general exclusion order is issued, the imported products which are involved will be temporarily or permanently excluded from the market of United States, even the downstream products of the complained infringing products are equally difficult to escape. As in the specific investigative procedures, the United States enterprises are relatively easy to apply for the Section 337 investigations, while it is much more difficult for the Chinese enterprises to respond because of tight time schedule, high cost, evidence-gathering hardship as well as the non-familiarity with procedures and many other difficulties, which resulted in the majority of the companies investigated make choices of taking an "ostrich" strategy to not to respond to litigations, as for those enterprises who actively respond, the winning chance is slim. A more realistic question is, even if the rulings are in favor of enterprises, the costs are enormous. Such as China's NanFu battery as well as other battery enterprise groups responding to Section 337 investigation of the United States complained by Energizer battery, only the attorneys'fee of the Chinese battery enterprises cost up to 250 million US dollars. For this reason, China's enterprises in the case of Section 337 investigations often recede out of a fear of difficulty.According to an incomplete statistics, from 1972 to May 14, 2008, ITC launched a total of 650 investigations Under Section 337 of 1930 Tariff Acts allover the world, and 90 of the investigations among them were towards the enterprises of China. Among them, 60 cases were initiated after 2002, accounted for 80% of the total cases towards China. Over the past three years the average amount of money involved amounted to 1.35 billion US dollars per year. Thus, the negative impacts of Section 337 investigations to Chinese export enterprises are very great. As far as the current Section 337 investigations involving Chinese enterprises, the investigated products range from the day-to-day leather products, sports shoes, multifunctional knives, toothbrushes, batteries, and other small items, to wooden floors, radios, computers, DVDs and tractors, as well as optical fibers, rare earths and other new types of materials, the scope is very broad, of course, the main targets are products of Electrical and Mechanical categories.Faced with such kind of billowy Section 337 investigations, how shall China's enterprises and Government respond? The author, begin with the basic understandings of Section 337, discusses its legal nature, the substantive elements and procedural provisions of the investigation, and inspects the increase in the number of Section 337 investigations which Chinese enterprises suffered in the United States'global trade protection system, and come to a logical corollary: Section 337, as one of the most important part in the United States'intellectual property protection legal system, its protection function to intellectual property will not be undermined, but will play a greater role in the United States intellectual property rights protection in foreign trade. After analyzing the grim situation of China in Section 337 investigations, the author boldly propose that, the fundamental solution to the "337 distress" of Chinese government and enterprises lies in the reform of the current laggard foreign trade legal system.This essay has 8 chapters in total. The brief introduction to specific content is as follows:Chapter One: This Chapter is the general introduction of Section 337, divided into four sections, which respectively analyzes the legislative background, evolution history, function transformation and the current provisions and basic condition of Section 337. The legislative background of Section 337 focuses on the perspectives of economic, social and legal background to figure out an original condition of the establishment of Section 337. After that, the author further studies the evolution history of Section 337 after the establishment of the section in 1930, and finds out the beginning and subsequent development. Knowing that Section 337 focus on investigation of intellectual property right infringement, section three of this essay expatiates on the process that the function of Section 337 transforms from pure tariff provisions into a trade relief measure attacking the unfair acts in intellectual domain of foreign trade. Upon these introductions, the author naturally conveys the current provisions and basic condition of Section 337.Chapter Two: The substantiality of Section 337. Before the analysis of the substantiality, the author first indicates that the nature of the Section 337 is a trade relief measure. Then, the three requirements of substantiality for the ITC to apply are: (1) Unfair methods of competition and unfair acts; (2) injury to domestic industry; (3) an industry exists or is in the process of being established. The author then analyses above-mentioned requirements respectively.Chapter Three: The basic procedure of Section 337 investigations. Section 337 investigation procedure is very complicated. The author starts with the main body of the investigation, introduces the complainant and the conductor of Section 337 investigation. Then it is followed by a further specific introduction of procedure. At the end of this chapter, the author makes a summary of the character of the investigation procedure.Chapter Four: The relief of Section 337 violations, a unique character of Section 337. Thus, the author spends a chapter for introducing the Cease and desist orders, limited and general exclusions, and meanwhile, specifically analyses the application requirements and relevant procedures.Chapter Five: The status of Section 337 in the US intellectual property right protection. Although provided in a foreign trade law system, Section 337 has a function of intellectual property right protection. Then, what is the status of Section 337 in the US intellectual property right protection and the role of United States in promoting this section? The author discusses these questions in chapter five. Starting from the perspective of nation strategy and the establishment of foreign trade policy, this essay provides a comparative research on the relationship between Section 337 and the US intellectual property right protection, and on difference between Section 337 investigation and anti-dumping investigation, etc. then comes out the important status of Section 337 in the intellectual property right protection of the United States.Chapter Six: The challenge form international law confronted by Section 337. For the consecutive investigation of foreign enterprises, Section 337 confronts many challenges from the international society. This chapter analyses whether Section 337 has complied with relevant provisions of GATT/WTO, introduces and observes the disputes between Canada, the EU and the US on the Section 337.Chapter Seven: The impact of Section 337 on China. This question has two aspects both in macro level and micro level. On one hand, Section 337 has a various impact on our country, including macro-economy, industry policy and trade guidance; on the other hand, the impact on our country is reflected by detailed data and materials. Thus, this chapter demonstrates the magnificent negative impact that Section 337 has on China both theoretically and practically, by integrated rearranging and analyzing investigation details, causes, the consequential impact and by reviewing typical cases involving Chinese enterprises.Chapter Eight: The suggestion for China to deal with problem of Section 337. Legal suggestion is the major original and creative part in this essay. From the perspectives of government, enterprises and foreign trade system, the author raises specific suggestion based upon analysis of standpoint of government, attitudes of investigated enterprises and the problem with backward foreign trade system.
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