One attorney describes an International Trade Commission exclusion order, which bars imported products that infringe U.S. patents from entering this country, as a “knife at the throat” of infringers. This helps explain why last year marked the fifth year in a row of jumps in the number of unfair import investigations opened by the ITC. Known as “337 claims”after the section of the federal statute that authorized themthe investigations are almost always based on allegations of IP infringement. In 2006 the commission opened cases on 32 claims, one trademark and the rest U.S. patent violationsa rise of four cases from 2005, and more than double the number in 2002. The five-year upswing is explained by the increasing flight of manufacturing overseas, with the finished goods getting shipped back to the United States.

The ITC is valued as a forum not only for the possibility of winning an exclusion orderthe only remedy availablebut also for the speed with which the investigations are adjudicated, usually within 14 to 19 months. Many 337 practitioners expect the upward swing in cases not only to continue but to increase, due to the U.S. Supreme Court’s May 2006 decision in eBay v MercExchange, which made it more difficult for a successful patent infringement plaintiff to get an injunction in federal district court. Indeed, by the end of April, the number of claims filed in 2007 had hit nearly one per week.

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