AI And Section 337 Investigations

• Published date: 13 February 2026
• Subject Matter: Intellectual Property, Technology, Patent, New Technology
• Law Firm: Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
• Author: Mr Eric Fues and Abhinav Garg

The Highlights

1. Jurisdictional Limits on Digital AI Inputs: Because p 337 applies only to "articles," the ITC generally lacks authority over intangible digital imports such as electronically transmitted AI training data or standalone AI software.
2. Hardware-Linked AI Products Likely to Drive Future Cases: AI‑first and AI‑enabled hardware'such as wearables, smartphones, and automotive sensors'are expected to generate substantial ITC litigation as companies rely on p 337 to block infringing physical imports.
3. Induced Infringement May Provide a Path for AI Software Claims: Under the Suprema framework, complainants may pursue p 337 relief against imported hardware if the importer facilitates post‑importation installation or use of infringing AI software.

To obtain relief under p 337, the ITC requires proof that imported products infringe a valid federal intellectual property (IP) right, such as a patent, copyright, or trademark. This typically involves applying the relevant IP law to establish infringement.

However, software-related cases raise unique jurisdictional issues because p 337 focuses on imported goods. Software transmitted electronically into the US may fall outside the ITC's p 337 authority, whereas software added in the US to an imported product may fall within it. These scenarios have resulted in challenges to ITC jurisdiction that are likely to recur with AI-related technologies.

Practical Law asked Finnegan attorneys Eric J. Fues and Abhinav Garg to discuss the future of AI litigation before the ITC.

What led you to begin thinking about potential AI-related litigation at the ITC?

AI is developing at an extraordinary pace and is already reshaping the global economy. US companies are investing heavily in AI research and development, and they will undoubtedly use all available means to protect IP rights arising from these investments. One tool for stopping competitor imports is p 337, which allows the Commission to block the importation of infringing articles into the US.

What role does the ITC play in protecting companies from violations of their IP rights?

The ITC is a federal agency that investigates and adjudicates complaints brought by private parties concerning unfair import practices under p 337. Most p 337 investigations involve allegations of infringement of federal IP rights (such as patents, copyrights, or trademarks), but the statute also covers some non-federal IP rights violations (such as trade secret misappropriation).

If a complainant proves a p 337 violation, either through dispositive motion practice or after a hearing before the presiding administrative law judge (ALJ), the ITC can issue powerful remedies, including exclusion and cease-and-desist orders. These remedies can block infringing articles from entering the US market and prevent their importation, sale, and distribution, effectively shutting down access to the entire US market for those articles.

What are the elements of a p 337 violation in an investigation involving federal IP rights?

The three elements of a p 337 violation involving federal IP rights are:

• An importation, sale for importation, or sale after importation of an article
• An infringement under governing federal IP law
• A domestic industry that meets both economic and technical criteria

Importation, Sale for Importation, or Sale After Importation

To determine whether there has been an importation, sale for importation, or sale after importation of an infringing article, the ITC examines whether an accused article has entered the US. Although the statute does not define importation, US trade practice generally interprets the term as merchandise arriving:

• Within US customs territory (for non-vessel shipments)
• By vessel at a US port with intent to immediately unload merchandise. (19 C.F.R. ' 101.1 (defining date of importation).)

Even if the article is not actually imported, a sale for importation is sufficient under p 337. A sale for importation occurs when an entity either:

• Sells an article with the intent to import it into the US.
• Has actual or constructive knowledge that the article will be imported into the US. (See Enercon GmbH v. Int'l Trade Comm'n, 151 F.3d 1376 (Fed. Cir. 1998); In re Certain Carbon & Alloy Steel Prods., No. 337-TA-1002, 2017 WL 5167413, at *13-14 (Oct. 2, 2017) (Order No. 103).)

The Commission interprets the term article very broadly to cover products:

• Of any origin, whether US or foreign (see In re Certain Sputtered Carbon Coated Comput. Disks, No. 337-TA-350, 1993 WL 854336, at *5 (Nov. 1, 1993) (Comm'n Op.) (stating that the "statute, by its terms, does not limit coverage to articles of foreign manufacture" and can cover reimportation of articles into the US)).
• Of any quantity (see In re Certain Chem. Mech. Planarization Slurries, No. 337-TA-1204, 2022 WL 100271, at *5 (Jan. 6, 2022) (Comm'n Op.) (explaining that importation of "even a single infringing article is sufficient to support an action under [S]ection 337"); In re Certain Trolley Wheel Assemblies, No. 337-TA-161, 0084 WL 951859, at *4 (Nov. 1, 1984) (Comm'n Op.) (finding that the importation of a single sample trolley wheel constituted the importation of an article under p 337)).
• Entering the US for any purpose, including products used:
  • as promotional samples (see In re Certain Abrasive Prods., No. 337-TA-449, 2002 WL 480986, at *49 (Feb. 8, 2002) (Initial Determination));
  • as trade show displays (see In re Certain Acesulfame Potassium & Blends, No. 337-TA-403, 1999 WL 176207, at *80 (Jan. 15, 1999) (Initial Determination));
  • for clinical trials (see In re Certain Recombinantly Produced Hum. Growth Hormones, No. 337-TA-358, 1994 WL 931690, at *2-3 (Jan. 26, 1994) (Initial Determination) (addressing the importation of human growth hormones)); and
  • for basic research (see In re Certain Recombinantly Produced Hum. Growth Hormones, 1994 WL 931690, at *2-3).

Infringement of a Federal IP Right

The Commission separately evaluates importation and infringement even though they are closely tied to each other by the statute's delineation of unlawful activities in "the importation ... of articles that infringe" a federal IP right (19 U.S.C. ' 1337(a)(1)(B) to (E)).

Whether an article infringes a federal IP right is determined by the substantive federal law that governs the alleged IP infringement, including patent infringement (see In re Certain Carbon & Alloy Steel Prods., No. 337-TA-1002, 2018 WL 7572059, at *7 (Mar. 19, 2018) (Comm'n. Op.)). This includes the principles of literal infringement, doctrine of equivalents, and law of direct and indirect infringement (see, for example, In re Certain Power Converter Modules, No. 337-TA-1370, 2025 WL 857695, at *7, 13-14 (Feb. 26, 2025) (Comm'n Op.)

Existence or Emergence of a Domestic Industry

Unique to the ITC's authority under p 337, the complainant must satisfy both the economic and technical prongs of the domestic industry element.

The economic prong is satisfied by showing one or more of the following:

• Significant US investment in plant and equipment.
• Significant US employment of labor or capital.
• Substantial US investment in the IP's exploitation, including engineering, research and development, or licensing. (19 U.S.C. ' 1337(a)(3).)

There is no rigid formula for satisfying the economic prong of the domestic industry element. Rather, the courts interpret p 337 to require a holistic view of the facts. For example, the ITC may consider factors such as the size of the complainant entity, the size of the market for the articles in question, the size of the investments in question relative to the entity's total domestic investment, and the entity's investment-to-revenue ratio. (See Wuhan Healthgen Biotechnology Corp. v. Int'l Trade Comm'n, 127 F.4th 1334, 1338 (Fed. Cir. 2025); Lelo Inc. v. Int'l Trade Comm'n, 786 F.3d 879, 883-85 (Fed. Cir. 2015).)

The technical prong of the domestic industry requirement is satisfied when the complainant's investments are "with respect to the articles protected by the" IP right (19 U.S.C. ' 1337(a)(3)). In practical terms, the investments must relate to an article that actually practices the IP right. For example, if the IP right is a patent, the technical prong analysis closely resembles an infringement analysis, that is, an assessment of whether the article practices every limitation of at least one claim of the asserted patent.

What is the ITC's history with p 337 litigation over new technologies?

The ITC has consistently been at the forefront of technology when it comes to the types of products it investigates under p 337. This trend stems from the fact that when a US patent holder experiences strong market demand for a new product, competitors often move quickly to import similar products to take advantage of the...