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Injury to Domestic Industry

While Section 337 investigations at the ITC mostly involve claims regarding intellectual property rights, other forms of unfair competition involving imported goods, such as misappropriation of trade secrets, breach of contract, and false advertising, may also be asserted. The formal domestic industry requirement for ITC complainants in statutory intellectual property investigations does not apply to non-statutory intellectual property, such as trade secrets, common law trademark, breach of contract, and false advertising, amongst others. Instead, the statute's subsection governing non-statutory intellectual property applies to only one of the following three sub-provisions: (i) to destroy or substantially injure an industry in the United States; (ii) to prevent the establishment of such an industry; or (iii) to restrain or monopolize trade and commerce in the United States.

Economists at Brattle have significant experience in evaluating economic issues in non-statutory intellectual property investigations. Brattle economists assisted complainant Manitowoc in Certain Crawler Cranes and Components Thereof (Inv. No. 337-TA-887) to demonstrate injury to the domestic industry from misappropriation of trade secrets by the respondent, Sany. The ALJ granted a motion for summary determination, finding that Manitowoc had shown that actions by Sany had injured or threated to injure the domestic crawler crane industry. In its opinion, the Commission affirmed related parts of the ALJ’s ID and issued a cease and desist order against Sany with respect to the asserted trade secrets for 10 years.

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