AI And Section 337 Investigations

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 large US market. Patent holders frequently turn to the ITC because of its strong exclusionary remedies and its expedited process. ITC investigations typically proceed from institution to hearing within nine months and through Commission review within 16 months.

The ITC has handled disputes involving some of the most significant and impactful technologies for US consumers and companies, from memory chips and batteries in the 1980s to smartphones and medical devices in the 2010s. This trend has continued with recent:

• Patent-based investigations, such as in:
  • In re Certain Light-Based Physiological Measurement Devices, No. 337-TA-1276, 2023 WL 8109999 (Nov. 14, 2023) (Comm'n Op.) (involving the Apple watch);
  • In re Certain Robotic Floor Cleaning Devices, No. 337-TA-1252, 2023 WL 3033552 (Apr. 13, 2023) (Comm'n Op.) (involving SharkNinja robotic vacuums and mops); and
  • In re Certain Tobacco Heating Articles, No. 337-TA-1199, 2021 WL 4947427 (Oct. 19, 2021) (Comm'n Op.) (involving R.J. Reynolds and Philip Morris e-cigarettes).
• Trade secret-based investigations, such as in:
  • In re Certain Lithium Ion Batteries, No. 337-TA-1159, 2021 WL 856373 (Mar. 4, 2021) (Comm'n Op.) (filed by electric vehicle battery maker LG Chem); and
  • In re Certain Botulinum Toxin Prods., No. 337-TA-1145, 2021 WL 141507 (Jan. 13, 2021) (Comm'n Op.) (filed by makers of Botox).

What areas of AI technology do you see as potentially leading to litigation at the ITC and why?

Given the explosion in market interest, AI technologies are poised to be aggressively challenged at the ITC. These emerging technologies can be broken down into four key areas:

• AI training data and algorithms used to train AI systems to recognize patterns or make decisions.
• Computer hardware for AI systems, such as specialized chips and devices that power AI functionality.
• Software using AI, such as applications that incorporate AI capabilities.
• AI-first products, which are products whose primary functionality relies on AI technologies, such as robots using computer vision in product assembly operations.

There is a high likelihood of future litigation at the ITC over AI technologies, especially when considering what has happened in the past. For example, it is reasonable to expect that key industry players, including some that have been frequent p 337 litigants (such as Apple, Google, and Microsoft), will become involved in AI-related investigations.

What trends did you observe in 2025 that might lead to more ITC litigation?

In 2024, we predicted that AI-first products would serve as the linchpin for ITC litigation by providing the necessary jurisdictional hook, that is, the "material things" needed under ClearCorrect Operating, LLC v. International Trade Commission to satisfy the statutory requirement for "articles" (810 F.3d 1283 (Fed. Cir. 2015)). Since then, we have seen a wave of AI-first products entering the consumer electronics market, including:

• Wearables, such as smartwatches, smart rings, and smart glasses, which are promising to provide AI-powered sports coaching, live navigation, and health analytics.
• Smartphones with embedded AI chips, which are being released with AI features (such as generative writing, photo editing, and voice assistant features) and are front and center in product launches.
• Laptops shipped with built-in AI chips and AI software.
• Smart TVs with AI remotes, AI software, and AI-based resolution and audio upscaling.
• Cars with upgraded interfaces, allowing for more human interaction with voice controls.

Each of these product areas will likely face increased competition as market adoption increases. At least five p 337 complaints accusing AI-first products were filed in 2025, such as:

• AI-chips used in applications such as autonomous vehicles (In re Certain Integrated Cirs., No. 337-TA-1450; In re Certain Foreign-Fabricated Semiconductor Devices, No. 337-TA-1443).
• Electroencephalogram (EEG) devices with AI algorithms (In re Certain Wearable Electroencephalogram Devices & Sys., No. 337-TA-1458).
• Wi-Fi routers using AI to intelligently monitor network usage (In re Certain Wi-Fi Routers, Wi-Fi Devices, Mesh Wi-Fi Network Devices & Components Thereof, No. 337-TA-1454).
• Data connectivity wiring for AI backend networks (In re Certain Active Elec. Cables & Components Thereof, No. 337-TA-1446).

What unique legal issues might arise from p 337 investigations involving AI?

Unique legal issues are likely minimal for computer hardware and AI-first products. Both involve tangible, high-tech products, which are long-standing staples of p 337 investigations. For example, computer chips, typically protected by various patents, have frequently been the subject of p 337 investigations. Some of the biggest cases of the 1980s involved high-profile manufacturers, such as Fujitsu and Samsung, litigating over memory chips such as DRAMs and SRAMs. Additionally, while semiconductor cases have fluctuated over time, the ITC's p 337 docket almost always includes active investigations involving these products (see, for example, In re Certain Integrated Cirs., No. 337-TA-1450 (involving semiconductor products); In re Certain Foreign-Fabricated Semiconductor Devices, No. 337-TA-1443 (same); In re Certain Semiconductor Devices, No. 337-TA-1414 (same)).

On the other hand, the intangible nature of AI training data and software that leverages AI may lead to challenges to the ITC's jurisdiction.

What are the potential jurisdictional issues regarding AI training data?

The primary challenge for a complainant seeking to bring a complaint involving an intangible product such as AI training data stems from the Federal Circuit's decision in ClearCorrect. In that case, the Federal Circuit held that the ITC lacks jurisdiction over digital imports because they are not articles under p 337 (810 F.3d at 1301-02). By limiting the ITC's authority over digital goods, the ClearCorrect decision is likely to make any complaint concerning digital AI training data subject to jurisdictional challenge.

What were the details of the ClearCorrect case?

The ClearCorrect decision was an appeal from a p 337 violation finding in In re Certain Digital Models, Digital Data, & Treatment Plans, No. 337-TA-833, 2014 WL 12935963 (Apr. 9, 2014) (Comm'n Op.)). The investigation involved patent infringement allegations concerning digital 3D models of patients' teeth used to manufacture plastic teeth aligners.

ClearCorrect's US operations scanned physical models of patients' teeth and made digital recreations, which were transmitted electronically to ClearCorrect Pakistan. The Pakistan facility created digital data models for aligning the teeth into final position and then transmitted them back to the US. The US facility then 3D-printed physical models and manufactured the aligners. Although the process combined US and overseas steps, the products accused of infringement were the digital models created in Pakistan.

The Commission held that the term articles under p 337 includes the electronic transmission of digital data and found a violation. On appeal, the Federal Circuit reversed, applying the two-part test outlined in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. (467 U.S. 837, 843 (1984)) for interpreting statutes administered by federal agencies. The Federal Circuit held that the ITC lacked the authority to regulate ClearCorrect's importation of digital data because electronic transmissions of digital data are not "material things" and therefore not articles under the statute. (ClearCorrect, 810 F.3d at 1299-1302.) (As discussed further below, the Supreme Court's overruling of Chevron in Loper Bright Enterprises v. Raimondo (603 U.S. 369 (2024)) is not likely to impact ClearCorrect.

The decision in ClearCorrect limited the ITC's authority over digital-only imports, creating significant obstacles for complainants seeking to address infringement based solely on intangible products, such as AI training data. Accordingly, complainants seeking ITC remedies for digital products should consider incorporating physical components or emphasizing hardware associations to avoid jurisdictional challenges under ClearCorrect.

Despite ClearCorrect, how have other courts handled intangible products and their impact on federal IP rights?

An interesting issue involves US copyrights. In June 2025, the US District Court for the Northern District of California decided in Bartz v. Anthropic PBC that AI tools' use of copyrighted materials for training falls under the fair use exception. Judge Alsup reasoned that training a generative AI (GenAI) tool is "[l]ike any reader aspiring to be a writer," not like a copyist seeking to replicate the author. (787 F. Supp. 3d 1007, 1022 (N.D. Cal. 2025).) By GenAI, we mean AI that generates new content (such as text, images, or audio) based on patterns learned from training data. However, the court criticized Anthropic's actions of compiling and storing pirated copies of literature and suggested that the output of GenAI remains subject to copyright enforcement (787 F. Supp. 3d at 1033-34). 

By contrast, under ClearCorrect, any digital transmission of GenAI output that violates a copyright would fall outside the ITC's jurisdiction, even though p 337 covers copyright infringement. Moreover, imported physical AI-first products trained on US-copyrighted materials might evade substantive infringement analysis at the ITC under the holding of ClearCorrect.

For example, consider a guitar amplifier with AI software trained on hundreds of copyrighted songs to auto-compose riffs. The physical nature of the guitar amplifier would qualify as an "article" under p 337, but the use of copyrighted material to train the auto-composing feature would likely evade liability under Bartz. Only if the guitar amplifier reproduced the copyrighted riffs or songs it was trained on might a p 337 complaint be successful.

Could the Supreme Court's 2024 Loper Bright decision overruling Chevron call the ClearCorrect decision into question?

Likely not. In Loper Bright, the Supreme Court eliminated the doctrine known as Chevron deference, effectively shifting statutory interpretation authority from agencies to federal courts. However, agency statutory interpretations remain subject to a modicum of deference, called Skidmore deference (see Loper Bright Enters., 603 U.S. at 388 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).

In ClearCorrect, while the Federal Circuit applied the Chevron framework, it reversed the ITC's interpretation of p 337 and held that electronic transmissions of digital data do not constitute articles under p 337. The court relied on several contemporaneous and modern dictionary definitions of the term articles, analyzed different portions of p 337 for consistent usage, considered the legislative history, and noted the impracticalities of "seizing" digital "articles" at the US border. (ClearCorrect, 810 F.3d at 1291-1302.)

Judge O'Malley's concurrence argued that the major questions doctrine precludes reliance on Chevron, opining that Congress in 1922 could not have intended the term articles to cover digital transmissions and that only Congress could expand ITC jurisdiction to cover them (ClearCorrect, 810 F.3d at 1302-03). A litigant would therefore face an uphill battle arguing that the case would have turned out differently absent Chevron deference.

Judge Newman's dissent forcefully argued that the majority substantially weakened the rights of federal IP holders by refusing to reasonably adapt the scope of p 337 to the "new technologies of the Information Age" (ClearCorrect, 810 F.3d. at 1304). However, given the Supreme Court's emphasis on the contemporaneous meaning of the text in Loper Bright, such forward-looking and pragmatic arguments may not succeed in future litigation.

What are the potential jurisdictional issues regarding software using AI?

AI software delivered electronically and not tied to a tangible article (as opposed to, for example, software loaded onto a physical device like a memory stick) may fall outside the ITC's p 337 authority under ClearCorrect. However, AI-software IP holders may be able to explore creative ways to pursue infringement at the ITC, such as by alleging induced infringement under the Federal Circuit's en banc decision in Suprema, Inc. v. International Trade Commission (796 F.3d 1338 (Fed. Cir. 2015)), even though these allegations may invite challenges to the ITC's statutory authority under the Supreme Court's Loper Bright decision.

What were the details of the Suprema case?

The Federal Circuit's Suprema decision arose from the ITC's investigation in In re Certain Biometric Scanning Devices (No. 337-TA-720, 2011 WL 2458696 (June 17, 2011) (Initial Determination)). Suprema, Inc., the principal respondent, made fingerprint scanners outside the US. To function, the scanners had to be connected to a computer equipped with custom-developed software. Although Suprema did not make or sell the software, it shipped a software development kit (SDK) and instruction manual enabling third parties to develop custom programs for controlling the scanners.

Suprema sold scanners to respondent Mentalix, Inc., a US company that developed custom software using Suprema's SDK to control and operate the scanners. Cross Match Technologies, Inc., the owner of a US patent claiming a method for capturing and processing a fingerprint image, filed a complaint with the ITC. The presiding ALJ found that several of Suprema's scanners directly infringed method claim 19 when combined with Mentalix's software (In re Certain Biometric Scanning Devices, 2011 WL 2458696).

On review, the Commission agreed that:

• Mentalix directly infringed claim 19 by integrating its software with Suprema's scanners and SDK and using them in the US.
• Suprema induced infringement by willfully ignoring Mentalix's infringing activities and collaborating to import and adapt Mentalix's software to work with Suprema's scanners. (In re Certain Biometric Scanning Devices, 2011 WL 8883591, at *7-8 (Nov. 10, 2011) (Comm'n Op.).)

Applying Chevron deference, the Federal Circuit, reversing the original panel in a six to four en banc decision, affirmed the Commission's decision (Suprema, Inc., 796 F.3d at 1352-53). Therefore, under Suprema, patent holders targeting imported hardware later paired with infringing software in the US may still obtain ITC relief, provided there is evidence of inducement.

How could the Suprema case be applied to software using AI?

Suprema effectively holds that an importer cannot avoid p 337 liability by importing hardware without software and then providing instruction or assistance for post-importation downloading or development of the software. These post-importation acts can establish a p 337 violation.

Consider the automotive electronics sector, where the use of machine learning is increasing. Suppose a company makes camera and LiDAR modules abroad, designed for use with software that enables lane keeping or traffic sign recognition. After importation, the company instructs or assists its US-based dealerships in installing the software. Under Suprema, an owner of a US patent covering the integrated product, or conceivably the software itself, could bring a p 337 complaint against the module maker based on induced infringement. ClearCorrect likely does not apply because, in that case, the digital models were imported, whereas the software in the hypothetical is not imported.

Accordingly, complainants in analogous circumstances should consider collecting evidence showing deliberate support or instructions for using software with an imported product when asserting induced infringement claims at the ITC.

Why might inducement allegations lead to challenges to the ITC's p 337 jurisdiction?

The Supreme Court's decision in Loper Bright may lead to challenges to p 337-related Federal Circuit precedents that relied on Chevron  deference, including Suprema.

It is not a foregone conclusion, however, that revisiting p 337's requirement of "articles that infringe" under Loper Bright would result in a different outcome. While some practitioners expected Loper Bright to shrink federal agency authority, recent developments suggest otherwise. For example, in Lashify, Inc. v. International Trade Commission, the Federal Circuit rejected the Commission's interpretation of the economic prong of the domestic industry requirement as too narrow, a view that some practitioners see as expanding p 337's coverage to include a greater variety of potential complainants (130 F.4th 948, 959-63 (Fed. Cir. 2025)). The Commission has also noted that Loper Bright's overruling of Chevron does not "automatically overrule or even call into question the Commission's interpretation of [S]ection 337" (In re Certain Movable Barrier Operator Sys., No. 337-TA-1118, 2024 WL 5378881, at *31-32 (Dec. 20, 2024) (Comm'n Op.)).

However, there are indications that the Commission may narrow the reach of its decision in In re Certain Biometric Scanning Devices (the decision affirmed by the Federal Circuit in Suprema) on its own by re-examining how much involvement in the importation process is sufficient for p 337 liability (In re Certain Biometric Scanning Devices, 2011 WL 8883591; see, for example, In re Certain Components for Certain Environmentally-Protected LCD Digital Displays, No. 337-TA-1349, 2024 WL 3051877, at *4 (June 17, 2024) (Notice) (posing questions for participating litigants to address in post-hearing briefs to the Commission)). This suggests that the Commission may eventually determine that a company too far removed from the importation or sale for importation of articles may escape p 337 liability, even if it directly or indirectly infringes after the products enter the US.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.