Two New Trade Decisions — Fair Determinations for Newer Trade Issues? … Yes.

     There were two interesting developments yesterday in the U.S. pertaining to trade law and import remedies. 
     The first involved an administrative setback for Apple and the second a judicial setback for the U.S. Dept. of Commerce. Both decisions seem to be fair and accurate determinations of newer trade issues.
     The first case involved a §337 petition for patent infringement and the second case involved countervailing duties on imports from nonmarket economies.
  • The first case focused on the Android phone by HTC (Taiwan). The U.S. International Trade Commission issued a final ruling in this §337 case involving patent infringement. The case was brought by Apple against HTC. Apple claimed its patents were violated by the Android’s use of Google software and imports should be excluded. This case was a key test in the ongoing smartphone wars. The ITC found only one violation of a patent by HTC. The decision significantly limited the earlier ruling and was a very, very limited victory for Apple.
  • The second case involved the Court of Appeals for the Federal Circuit. It ruled that countervailing duties cannot be imposed on products from nonmarket economies (China). The court argued this would amount to double accounting when imposed along with an antidumping duty. This decision reaffirmed an earlier 1984 Supreme Court that came to the same conclusion. This case involved tires from China and a general subsidy. GPX Int’l Tire Corp (December 20, 2011). Of course, Congress could always change the law but that would put the U.S. in violation of a recent WTO case.
     These cases clearly indicate the following:
  • Getting trade remedy relief in the U.S. is not automatic;
  • U.S. agencies and courts give diligent consideration to difficult trade issues;
  • These issues often involve the newest areas of trade relations that have emerged over the last twenty years; 
  • These issues involve, among others, intellectual property rights and imports from nonmarket economies;
  • In the future these issues will certainly involve more imports from China and now inevitably the Russian Federation.

About Stuart Malawer

Distinguished Service Professor of Law & International Trade at George Mason University (Schar School of Public Policy).
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