D. Process Patents in Section 337. The overall purpose of the change is to assist emerging United States industries, particularly, biotech, to compete in a marketplace against importing products manufactured using the genetic engineering process of the U.S. patent. The legislative history indicates that this provision is a desire to protect American innovation. Elimination of the Injury Test for Intellectual Property Infringement. It is unnecessary for a complainant to show that the alleged infringement of a U.S. patent, copyright, trademark or mask work results in an injury to a domestic industry.
Infringement is the injury.
The Japanese have already noted that now, small companies are enabled to file complaints with the U.S. Government. Friction over patents with the United States and Japan could mount. Small businesses should be defined in terms of labor, time, as well as the financial resources they have committed to developing, patenting or licensing inventions. Likewise, smaller businesses should not be denied the right to seek relief merely because they have made smaller financial investments than large companies, in developing, exploiting an intellectual property right. Substantial investment should be judged in the light of the facts or circumstances of the particular person or entity seeking to enforce the exclusion order.