Trade Law

With the enactment of the U.S. Inflation Reduction Act (IRA) and the announcement of the European Union (EU) Green Deal Industrial Plan, there is now a full-fledged subsidy war between the United States and the European Union. While these subsidies are meant to encourage green technologies, incentivizing firms to produce locally would seem to be an almost as important policy goal. And it is not limited to the U.S. and the EU. Global Trade Alert recently reported that, in 2022, production subsidies accounted for half of all trade-distorting measures, making it the mostly commonly used harmful trade policy measure.¹

International trade litigation requires patience. These disputes often span several years and involve multiple redeterminations by the agency whose action is subject to judicial review. The appeal can get even further complicated when the original proceeding becomes entangled with one or more subsequent administrative proceedings. And even if a party prevails on appeal, a victory may become hollow unless the appropriate agencies implement the redetermination in a timely fashion.

At the end of 2018, the U.S. Court of International Trade (CIT) issued an opinion in One World Techs., Inc. v. United States. In that decision, Judge Choe-Groves concluded that U.S. Customs and Border Protection (CBP) improperly excluded from importation one entry of a redesigned garage door opener imported by One World Technologies, Inc. She determined that One World’s redesigned garage door opener did not infringe U.S. Patent 7,161,319, which formed the basis of an exclusion order issued by the U.S. International Trade Commission (ITC) pursuant to Section 337 of the Tariff Act of 1930 (19 U.S.C. § 1337), because CBP had misconstrued certain claim terms in that patent. In so doing, Judge Choe-Groves construed the claims of the ’319 patent, an exercise rarely undertaken in prior disputes before the CIT. As a result of her conclusion, Judge Choe-Groves issued an injunction preventing CBP from excluding the entry at issue. Our earlier coverage of that decision provides additional details.

In late March, the U.S. Court of International Trade (CIT) issued a highly anticipated opinion addressing Section 232 of the Trade Expansion Act of 1962. Section 232 authorizes the President to take measures against imports found to threaten to impair the national security of the United States. Section 232 sets no limit on what measures the President may take against the imports, so long as the chosen remedy addresses imports.

A new year brings new decisions. In the first opinion issued in 2019 by the U.S. Court of International Trade (CIT), Judge Choe-Groves addresses the application of a hot-button issue—the U.S. Department of Commerce’s recently expanded “particular market situation” authority—through a combination of procedure and record review.

From time to time, international trade and patent law matters overlap. We expect to see these interactions in disputes filed pursuant to Section 337 of the Tariff Act of 1930 (19 U.S.C. § 1337). In other instances, the U.S. Court of Appeals for the Federal Circuit will cite to a patent-related decision in an opinion that addresses an appeal from the U.S. Court of International Trade (CIT), leaving members of the international trade bar dazed and confused. Rarely, however, does an action before the CIT mix customs questions with substantive patent issues, such as claim construction and infringement. Enter One World Technologies, Inc. v. United States, a decision authored by Judge Choe-Groves at the end of 2018.