Section 337 of the Tariff Act of 1930 as An Antitrust Remedy

DOI10.1177/0003603X8202700102
Date01 March 1982
AuthorTom M. Schaumberg
Published date01 March 1982
Subject MatterArticle
The Antitrust Bulletin/Spring 1982
Section 337
of
the Tariff Act
of
1930
as an antitrust remedy
BY
TOM
M.
SCHAUMBERG*
51
Section 337
of
the Tariff Act of 19301has not met its potential as
an antitrust law, nor as an antitrust remedy. While this might be
due, in part, to the fact that the antitrust bar does not think
of
the International Trade Commission (formerly the Tariff Com-
mission) as an antitrust enforcement agency, Congress itself has
dealt with §337 more as an international trade law
than
as an
antitrust law.2Section 337 should be given serious attention,
however, as an antitrust law for a number
of
reasons. First
of
all,
§337, like §5
of
the Federal Trade Commission Act,' is an
all-encompassing antitrust law drawing on both the Sherman and
Clayton Acts.' Secondly, unlike §5
of
the Federal Trade Commis-
sion Act, §337 lends itself to private enforcement. Thirdly, unlike
any other antitrust law, §337 promises speed. Finally, because
§337 can operate both in personam and in rem, many jurisdic-
Plaia
&
Schaumberg,
Chartered,
Washington,
D.C.
I19
U.S.C.
§1337 (1976 &
Supp.
III,
1979).
2A
Congressional
handbook
of
antitrust
laws
does
not
include
§337.
STAFF
OF
HOUSE
COMM.
ON
THE
JUDICIARY,
95TH CONG., 2D SESS.,
COMPILATION
OF
SELECTED
ANTITRUST
ACTS
(Comm.
Print
1978).
315
U.S.C.
§45 (1976).
415
U.S.C.
§§ 1-7 (1976); 15
U.S.C.
§§ 12-27 (1976).
©1982by Federal LegalPublications, Inc.
52 : The antitrust bulletin
tional
problems
are
avoided
and
relief
under
that
law
can
be
extraordinarily effective.
Both
§337
of
the
Tariff
Act
of
1930, as
amended,'
and
its
predecessor, §316
of
the
Tariff
Act
of
1922,6 have
been
used
principally
for
the
protection
of
intellectual
property
rights,
primarily
patents.
The
Court
of
Customs
and
Patent
Appeals'
long
ago
held
that
the
importation
of
an
infringing
product
constitutes an
"unfair
act"
under
§337. 8
Therefore,
classically
the
ITC
has been a
battleground
for
patent
attorneys
arguing,
on
the
one
hand,
the
infringement
of
American
patents,
and,
on
the
other,
the
noninfringement
or invalidity
of
those
patents." In
5Section 337(a) [19 U.S.C. §1337(a)] provides that, "Unfair
methods of competition and unfair acts in the importation of articles
into the United States, or in their sale by the owner, importer, consignee,
or agent of either, the effect or tendency of which is to destroy or
substantially injure an industry, efficiently and economically operated,
in the United States, or to prevent the establishment of such an industry,
or to restrain or monopolize trade and commerce in the United States,
are declared unlawful, and when found by the Commission to exist shall
be dealt with, in addition to any other provisions of law, as provided in
this section."
6Tariff (Fordney-McCumber) Act of 1922, ch. 356, §316, 42 Stat.
858,
943-44
(1922).
7Under §337(c), 19 U.S.C. §
1337(c)
(1976), the C.C.P.A. has
jurisdiction to review final ITC decisions in the same manner in which it
reviews decisions of the United States Court of International Trade
(formerly the United States Customs Court). For a brief discussion of
the C.C.P.A.'s scope and standard of review over §337 cases, see
Easton &
Neeley,
Unfair Competition in U.S. Import
Trade:
Develop-
ments Since the Trade
Act
of
1974, 5
INT'L
TRADE
L.
J. 203, 234 (1980).
8Frischer &Co., Inc. v. Bakelite Corp., 39 F.2d 247 (C.C.P.A.),
cert. denied, 282 U.S. 852(1930). Congress added §337a, Act of July 2,
1940, Pub. L. No. 710, ch. 515, 54 Stat. 724 (codified at 19 U.S.C.
§1337a (1976», to extend §337 protection to American process pat-
ents, thereby superseding the C.C.P.A.'s decision in In re Amtorg
Trading Corp., 75 F.2d 826 (C.C.P.A.), cert. denied, 296 U.S. 576
(1935).
9Since §337(c), 19 U.S.C. §
1337(c)
(1976), permits all equitable
and legal defenses to be raised, patent validity is usually challenged in a

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT