Can the USTR Deny Samsung an Exclusion Order Under Section 337?
Michael Froman recently exercised his discretion to overrule the International Trade Commission's determination to exclude from importation certain Apple products found to infringe Samsung patents. It is reported to be the first time since 1987 that a 337 order has been overruled. Thus, it is the first time since TRIPS came into being. Article 28 of TRIPS confers the right to block importation of infringing goods. So did Froman violate TRIPS? I suppose the argument might be that there is a right to block importation under ordinary court litigation, so the right has not been denied completely. What am I missing? Will Samsung bring a TRIPS case against the U.S.? The 1989 Section 337 Panel Report addressed the question of whether the existence of Section 337 discriminates against imported products, and Section 337 was modified afterwards to come into compliance, but the current question is a bit different: it is not a discrimination case, but a TRIPS Article 28 rights case.