The availability of a second venue to pursue patent lawsuits poses serious systemic problems. Section 337 contravenes a foundational element of free trade known as national treatment and violates the commitments of the United States as a member of the World Trade Organization. The law negatively impacts the integrity and functionality of U.S. patent law by establishing a dual‐track system for patent enforcement and retains its ability to serve as a purely protectionist trade remedy mechanism.
Proposals for modest reform offer an incomplete solution, and attempts to coordinate litigation at the ITC and district court proceedings will not end the discrimination, because the mere existence of a separate law and agency to handle patent cases against importers violates trade obligations. Repealing Section 337 is the only way to ensure the integrity of the U.S. patent system, to bring the United States into compliance with trade obligations, and to prevent future abuse of this protectionist trade law.
