ITC Trade Secret Litigation: An Underused Forum

Trade secret owners looking for a fast way to block the import of products embodying or using misappropriated trade secrets into the US may wish to consider bringing their claims to the United States International Trade Commission (ITC), an underused forum for trade secret disputes.

Authority for ITC Trade Secret Jurisdiction

U.S. Code Title 19 Section 1337(a)(1)(A) grants the ITC authority to investigate and remedy unfair methods of competition and acts in connection with imported goods.¹ Although the ITC is more often a venue for patent disputes, Section 337 also provides a powerful, but often overlooked, mechanism for addressing trade secret misappropriation tied to imported products. While more than 88% of Section 337 investigations in 2025 were brought solely on patent infringement grounds, approximately 2% of 2025 investigations focused exclusively on trade secret misappropriation.²

Complainants bringing trade secret claims under Section 337 must show (1) misappropriation (i.e., an unfair act) in connection with the importation of goods or sale of imported goods and (2) that the actual or threatened effect of the misappropriation is to harm industry or commerce in the United States.³ Importantly, the misappropriation need not have occurred in the United States or have been committed by a US citizen or organization.

Benefits of the ITC for Trade Secret Disputes: Expedited Schedules, Powerful Remedies, Reduced International Service Burden, and Jurisdictional Flexibility

• Speed: ITC litigation is quick, which is something the Commission makes an express priority.⁴ In 2025, the average ITC Section 337 investigation concluded in roughly 14 months.⁵ In contrast, from 2023 to 2025, the median time just to reach summary judgment in federal trade secret litigation was more than two years.⁶
• Unique exclusionary remedies: The ITC has the added benefit of unique and powerful remedies. The favored remedy for Section 337 investigations is an exclusion order that completely blocks the defendant’s at-issue products from being imported into the United States.⁷ The ITC also may issue cease and desist orders as well as temporary relief.⁸ And if the ITC finds a Section 337 violation, it must issue an exclusion order, unless Section 337’s “public interest factors” weigh against such an order.⁹
• Convenient service requirement: Parties outside the United States may be served by mail, and service by mail “is complete upon mailing of the document.”¹⁰ Compare this with service on foreign entities in connection with US district court litigation, which can be governed by the Hague Service Convention or other burdensome frameworks that often can take many months to complete, delaying the litigation and, as a result, the timeline to remedy.¹¹
• Jurisdiction over non-US misappropriation and actors: Section 337’s jurisdictional reach may apply even when the misappropriation occurs outside the United States and is perpetrated by a foreign actor, provided that the foreign conduct results in the importation of articles into the United States and causes or threatens the requisite injury to a domestic industry.¹²

Limitations: No Money Damages and the Domestic Industry and Importation Requirements

ITC litigation is not right for every trade secret case. While speedy exclusion orders may be an ideal remedy for some claimants, money damages are not available under Section 337.¹³ Section 337 should thus primarily be thought of as a forward-looking vehicle to address ongoing or imminent harm, not a vehicle to remedy past losses. Pursuing relief before the ITC, however, does not preclude a claimant from also pursuing monetary relief in district court, although overlapping district court claims may be stayed pending the ITC proceeding’s final resolution.¹⁴

Additionally, while Section 337 offers jurisdictional flexibility when it comes to where the defendant is located or where the misappropriation took place, there are other statutory nuances that claimants must consider. For example, there is a “domestic industry” requirement, which requires a claimant to show that the “nature and significance” of their activities in the United States are substantial enough to distinguish them from a “mere importer” of the goods associated with the asserted trade secrets.¹⁵ There is also the “importation” requirement, under which the misappropriation must be in connection with a good being imported into the United States¹⁶ — a requirement that may not be met if the accused offering is not a physical product being imported into the US.