Last week, we posted about ALJ Robert K. Rogers’ decision to deny the motion brought by Huawei, Nokia, and ZTE to stay InterDigital’s latest standard-essential patent ITC case (Inv. No. 337-TA-868) pending a FRAND determination in district court.  On Thursday March 14, these parties’ efforts to seek an expedited FRAND determination took another blow.  Judge Richard G. Andrews of the District Court of Delaware denied a motion brought by Huawei and ZTE to expedite discovery and trial on FRAND-related counterclaims.

At the time these motions were filed, we noted that if Huawei and ZTE were successful in getting a quick determination of FRAND terms, this could provide a blueprint for other ITC respondents facing allegations of infringing standard-essential patents.  But at least for now, it doesn’t appear that standard-essential patents are being given materially different treatment — at least not by all district courts.

Judge Andrews’ order denying the motion was very brief, coming in a mere 2 pages.  It appears that he was not convinced that rushing to a determination of FRAND terms for InterDigital’s standard-essential patents would sufficiently advance the dispute toward full resolution:

It seems to me, looking at each Complaint and the Answer, that determination of the FRAND rate would at most resolve a tiny sliver of the case . . . It does not seem to me like a very practicable idea to try to race to a partial judgment here so that each defendant will be in a better position in the ITC litigation.

So just as the FRAND battlefield in this case shifted to the district court briefly last week (when the motion to stay the ITC case was denied), it now shifts back to the ITC, where Huawei and ZTE will try to convince ALJ Rogers that InterDigital violated its FRAND obligations and/or otherwise is not entitled to an exclusion order.  The Commission’s pending Final Determination in Inv. No. 337-TA-794 — which is now due by May 31 — will likely provide guidance for them in how to make this case.