GD/178

United States - Section 337 of the Tariff Act of 1930

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Other titles

US Section 337 (Source: GATT Analytical Index)

Parties

Complainant
EEC
EEC-12
Respondent
United States
Third Parties
Japan
Korea
Switzerland
Canada

Products at Issue

Products at issue
General
Type of product
Not specified
Product sub-type

Related disputes

GATT
Related GD
GD/121
WTO

Key legal aspects

Legal basis
  • GATT Article XXIII:1
Claims raised
  • GATT Article III
Defences raised
  • n.a.

Adjudicators

Type Panel
Chairperson Graham Fortune (New Zealand)
Other members Pierre Pescatore (Luxembourg), Andreas Lowenfeld (United States)

Report

Type Panel
Legal basis at issue
  • GATT Article XXIII:1
Claims at issue
  • GATT Article III:4
Defences at issue
  • GATT Article XX(d)
No of Pages (total / legal reasoning) 65 (and 8 annex)
  • -
  • Inconsistency found
  • Defence found to be inapplicable

Timeline

Request for consultations
Request for establishment
Establishment
Composition
Report
Adoption of report

Outcome

Outcome of the proceedings
Report adopted
Additional Info L/6439 (16/01/1989) United States – Section 337 of the Tariff Act of 1930 – Report by the Panel: The Panel found that Section 337, inconsistently with Article III:4 of the General Agreement, accords to imported products alleged to infringe United States patents treatment less favourable than that accorded under federal district court procedures to like products of United States origin as a result of the following factors:

(i) the availability to complainants of a choice of forum in which to challenge imported products, whereas no corresponding choice is available to challenge products of United States origin;

(ii) the potential disadvantage to producers or importers of challenged products of foreign origin resulting from the tight and fixed time-limits in proceedings under Section 337, when no comparable time-limits apply to producers of challenged products of United States origin;

(iii) the non-availability of opportunities in Section 337 proceedings to raise counterclaims, as is possible in proceedings in federal district court;

(iv) the possibility that general exclusion orders may result from proceedings brought before the USITC under Section 337, given that no comparable remedy is available against infringing products of United States origin;

(v) the automatic enforcement of exclusion orders by the United States Customs Service, when injunctive relief obtainable in federal court in respect of infringing products of United States origin requires for its enforcement individual proceedings brought by the successful plaintiff;

(vi) the possibility that producers or importers of challenged products of foreign origin may have to defend their products both before the USITC and in federal district court, whereas no corresponding exposure exists with respect to products of United States origin. The Panel further found that the system of determining allegations of violation of United States patent rights under Section 337 of the United States Tariff Act cannot be justified as necessary within the meaning of Article XX(d) so as to permit an exception to the basic obligation contained in Article III:4 of the General Agreement. The Panel, however, considered that some of the inconsistencies with Article III:4 of individual aspects of procedures under Section 337 could be justified under Article XX(d) in certain circumstances.

The Panel recommended that the contracting parties request the United States to bring its procedures applied in patent infringement cases bearing on imported products into conformity with its obligations under the General Agreement.