On The Research Of The U.S. Section 337 And China's Counter Measures

U.S. Section 337 refers to section 337 of the Tariff Act of 1930, from which it got the using name. Having been continuously modified and developed, it has become the powerful weapon on protecting domestic intellectual property in international trade. When the import products infringe the legal intellectual property or engage in other unfair trade transaction, these kinds of import products would not be allowed to sale in American market if the violation of 337 Section was actually existed by the United States International Trade Commission after investigation. From April 4th 1972 when the first case of 337 investigation was initiated by America to 2010,752 cases of Section 337 investigations were launched, with involving 58 regions. From 1990 to 2010, the total cases of Section 337 investigations were 495, which accounts for 65.8% of all cases in the world.Since the adoption of reform and opening-up, with the rapid development of China' economic, the trade between China and America has increased substantially. According to Chinese customs statistics, the bilateral trade in 2010 worth＄385.3 billion between China and America, against a 29.2% increases in the previous year, and among them, the favorable balance of China was＄181.3 billion. At the same time, the technology of export products to America is increasingly maintained in the higher level. According to incomplete statistics, China'high-tech export products had increased from＄376.9 billion in 2009 to＄492.4 billion in 2010, with growth rate of 30.6%, producing a huge pressure for American domestic enterprises. Therefore, the international trade between China and America is more complicated because America was trying to prevent China from exporting products to them by using both anti-dumping and Section 337 in order to protect domestic market interests. Since the first case of Section 337 investigation toward China launched by American enterprises, the conflict on intellectual property has not stopped. By the end of 2010, in the articles of 337 Section launched by the United States international trade commission, there are 135 cases involving China enterprises. From 2001 to 2010, among 310 cases of 337 Section issued by America, there are 111 cases involving China enterprises. During the previous six months of this year, among the 29 cases of Section 337 investigation, there are 10 cases involving China enterprises, accounting for more than one third of all the cases. Last year, there are 19 cases of 337 Section investigation issued by American enterprises, reaching the 33.9% of the investigation cases in same period.However, due to the complicated entity rules and procedures mechanism of Section 337 investigation, most enterprises in our country tend to at a loss, especially for the high litigation cost. Furthermore, in the cases of Section 337 investigation, a wide range and products are involved. According to the incomplete statistics, among the finished case of Section 337 investigation involving our enterprises, the export enterprises suffering ban for adopting the remedy measure accounted for 41%, which finally had to give up America markets. Therefore, China has become the most serious victim of Section 337 investigation, and it had become another obstacle and new challenge for Chinese export to America after anti-dumping.In this paper, the trace of the historical development of U.S. Section 337 and its main content are firstly introduced. According to Section 337 rules, the unfair competition conducts include the unfair trade conducts about intellectual property and the normal unfair trade conducts. However, among the cases of Section 337 investigation issued by ITC, more than 90% cases are about intellectual property infringement. Therefore, after the competitive analysis between Section 337 and other remedy measures, the specialist of Section 337 investigation can be eventually emphasized, and America tend to use it to protect its own interests for the convenience and rigor of the investigation process. By comparing U.S. Section 337 with GATT and TRIPS agreement, the rationality of the existence of U.S. Section 337 is obviously questioned. Finally, according to the recent situation of Section 337 investigation and the influence on international trade between China and America, some measure and suggestion is raised, hopping to provide the help on minimizing the negative impact on the export enterprises in our country.