AI and Section 337 Investigations

• 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.

• 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).)

• 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).)

• 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 Section 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).

• 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).)

• 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).

• 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.

• 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 Section 337 complaints accusing AI-first products were filed in 2025, such as:

What unique legal issues might arise from Section 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 Section 337 investigations. For example, computer chips, typically protected by various patents, have frequently been the subject of Section 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 Section 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 Section 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 Section 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 Section 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 Section 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 Section 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 Section 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 Section 337 and held that electronic transmissions of digital data do not constitute articles under Section 337. The court relied on several contemporaneous and modern dictionary definitions of the term articles, analyzed different portions of Section 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 Section 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 Section 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:

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 Section 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 Section 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 Section 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 Section 337 jurisdiction?

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

It is not a foregone conclusion, however, that revisiting Section 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 Section 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 Section 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 Section 337 liability, even if it directly or indirectly infringes after the products enter the US.