337 In The United States Implementation Of The Mechanism

The enforcement mechanism of Section 337 is not only one of the important integral components of the whole legal system of trade laws of the United States, but also is one of the key sectors in the intellectual property enforcement mechanism of the United States. The method of systematic and integrative study on this enforcement mechanism of Section 337 is the most distinctive difference between this dissertation and other articles which focus on Section 337 itself and on other related aspects. The comprehensive exploration on the integration of legal elements, which belong to different dimensions but essentially and naturally interrelated with one another, can not only facilitate comprehending the elements themselves but also help to profoundly grasp the interrelation and the interaction between them, as well as the integral operating principles, rules and efficacy. This analytical mode and approach is just one of the most significant characteristics of this dissertation. From the perspective of enforcement mechanism, the purport of this dissertation is to endeavor to interpret the phenomena, forecast the trend and offer some strategies. Besides the introduction and the conclusion, this dissertation includes three chapters.In Chapter 1, theoretical research on the enforcement mechanism of Section 337 is made respectively from the angles of the theory and policy of international trade, the jurisprudence of international law and law and economics. This dissertation argues that the enforcement mechanism of Section 337 is in essence a micro legal instrument or means for the United States to carry out its certain international trade policies deeply based on certain international trade theories, although it is a kind of domestic legal mechanism. Accordingly, the genesis and development of this enforcement mechanism naturally, essentially and closely related with certain international trade policies and theories. By means of theoretical exploration, the enactment and revision of Section 337 and Tariff Act of 1930 are closely related to Theory of Super-protectionism, Theory of New Trade Protectionism and their corresponding trade policies.From the perspective of positive international law, the enforcement mechanism of Section 337 is legal under the framework of international law before totally decided by the dispute settlement mechanism of the WTO as illegal.Through analyses of the theory of path-dependence in new institutional economics, the United States would not pay no heed to the infringement of intellectual property in import trade even if Section 337 would be completely revised or abolished by the force of the dispute settlement mechanism of the WTO. There still would be effective institutional restraint on similar conditions and the enforcement mechanism of Section 337 would also just nominally vanish, instead of substantially vanish. The reason why this enforcement mechanism would not possibly be abolished mainly lies in the countless sunk cost arising from the total abolishment from the perspective of economics. Furthermore, the sunk cost is just one of the crucial elements for the genesis of institutional path-dependence. Accordingly, the institutional system of the enforcement mechanism of Section 337 has already enter into a status of path-dependence by reason of its historical development. An effect of institutional lock-in consequently emerged. In conclusion, this enforcement mechanism would continue to exist and even obtain further reinforcement in the future.In Chapter 2, basic proceedings of this enforcement mechanism are firstly analyzed for the sake of facilitating comprehensive and systematic analysis of this mechanism. By means of comparing this mechanism with antidumping investigations, main characteristics of this mechanism can be discovered also for further analysis of this mechanism. Furthermore, respective analyses of different sectors of this mechanism are subsequently explored, including the administrative proceedings, the judicial proceedings and the auto-execution proceedings of the Customs. An integral analysis is made on the basis of the respective analyses. As to the relationship between the administrative proceedings, the judicial proceedings and the auto-execution proceedings of the Customs, it can be generally deemed as the connection that the administrative proceedings are to issue remedies, the judicial proceedings are to legally confirm remedies and the auto-execution proceedings of the Customs are to enforce and effectuate the remedies. The three sectors interrelate one by one making the subsequent remedial measures come into force on the basis of sufficient legality and ultimately effectuate the desirable function of protecting industries of the United States.In Chapter 3, the phenomenon that Chinese enterprises are much more involved in Section 337 investigations after accession to the WTO than before is studied. This dissertation holds that there exist two main reasons. First, after the integration into the world trading system of the WTO, the trade volume between China and other WTO Members grows steadily. With the increase of the goods exported into the United States, the probability of being involved accordingly increases. Second, with the continuous raise of the level of science and technology and the comprehensive national power, the portion of technology-intensive products which are exported into the United States subsequently increases thus making the probability of infringing patent rights of the United States also rise.This dissertation argues that there is no such an universally applicable strategy for all Chinese enterprises due to the difference of market share, marketing strategy and the status of capital operation, etc among different enterprises. Selecting an appropriate law firm as an agent after being involved in Section 337 investigations is also not always the best solution. In some circumstances, making default can even also be the best solution. When it is the best reaction to respond to prosecutions, Chinese respondents can make effective defenses from the perspectives of subject matter jurisdiction, domestic industry standard, intervention and patent laws, etc.It is certainly important to seek all kinds of feasible solutions after being involved in Section 337 investigations. But such solutions just can have the similar effect of trying to stop water from boiling by scooping it up and pouring it back. After all, once being involved as respondents in such kind of investigations, Chinese enterprises would more or less unavoidably suffer from losses. In conclusion, to remove the ultimate cause of trouble, enterprises whose target market mainly is the market of the United States should attach more importance to the research and development of products and to obtain patent rights in the United States.