Customs Cases Could See Quick Resolution by Following Patent Rules, Says Lawyer
NEW YORK -- As trade lawyers test the waters of a new “small claims” procedure, another way customs lawyers and the government could streamline cases is by adapting procedures followed by their counterparts in intellectual property law, said lawyers at a seminar held by the Customs and International Trade Bar Association on April 21. Parties in customs cases could save a lot of time and expense in some cases if they get right to the legal issues of what HTS provisions mean, rather than engaging in a lengthy discovery process on the product at hand when it might not affect the outcome of the case, said Lawrence Friedman of Barnes Richardson.
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Patent cases come in two parts, with the judge deciding the legal issues of how a patent should be interpreted, and then a trial possibly determining the factual matters related to the product alleged to infringe the patent. Federal district courts handling patent cases use a process where the judge resolves the legal issues early on in the case, said Friedman, who is president of CITBA. In customs cases, the legal determination concerns the meaning of the relevant HTS provisions. Many times the “facts” characterizing the imported product itself are not in dispute, meaning an early decision by the judge could effectively resolve the case before too much time and money is spent, he said. Doing so wouldn’t need a change to the rules, but could be accomplished via a motion for “partial summary judgment” deciding only the interpretation of tariff provisions, though importers might face problems appealing because the full case won’t have been decided, said Friedman.
Meanwhile, the Court of International Trade’s new “small claims” procedure is “eagerly awaiting volunteers,” said Richard Belanger of Sidley Austin, who spoke alongside Friedman. The new pilot program, which began April 1 and is set to run 18 months, looks to limit the discovery process in cases with no effect on future entries, subject to the agreement by both the government and the importer (see 1604110034). Belanger hopes that in a couple years the pilot will garner some feedback and a CIT rule can be created to make the small claims procedure permanent, he said.