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Journal of Intellectual Property Rights (JIPR) >
JIPR Vol.17 [2012] >
JIPR Vol.17(3) [May 2012] >
| Title: | Analysis of Enforcement Mechanism of Section 337 of the US Tariff Act through Perspectives in Law and Economics |
| Authors: | Yu, Yang
Zhang, Lei |
| Keywords: | Section 337
Patent infringement
Trade remedy
Law and Economics |
| Issue Date: | May-2012 |
| Publisher: | NISCAIR-CSIR, India |
| Abstract: | The analyses made in this article aim at
providing distinct explanations and making some predictions on the enforcement
mechanism of Section 337 of the Tariff Act of 1930 of the United States from
three specific perspectives in the domain of law and economics. Firstly, from
the perspective of cost-benefit analysis, it is apparent that the utilization
of this enforcement mechanism is the more rational choice for patent holders
and exclusive licensees to prohibit and prevent patent infringement in import
trade compared with patent litigation in federal district courts. Secondly,
from the perspective of negative externalities, it could be ascertained that
negative externalities would possibly be incurred by the issuance and
enforcement of the general exclusion order issued by the US International Trade
Commission (ITC). Whether evaluated by Pareto-efficient or by
Kaldor-Hicks-efficient standards, economic inefficiency would potentially be
incurred by the issuance and enforcement of general exclusion order especially
from the global perspective. Some other institutional measures should be
designed and implemented to assure that the possible negative externalities and
economic inefficiency caused by general exclusion order should be regulated and
restrained to the greatest extent. Finally, from the perspective of path
dependence, it can be concluded that the legal institution of Section 337 has
been locked-in after the history of 90 years’ development. Consequently, even
if there would be another dispute against Section 337 adjudicated by the Dispute
Settlement Body of the WTO in the future, Section 337 would not be totally
abolished or substantially derogated. |
| Page(s): | 209-217 |
| CC License: |  CC Attribution-Noncommercial-No Derivative Works 2.5 India |
| ISSN: | 0975-1076 (Online); 0971-7544 (Print) |
| Source: | JIPR Vol.17(3) [May 2012]
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