In recent posts, we covered the briefs submitted by Samsung and Apple and the ITC Staff in response to the U.S. International Trade Commission’s request for additional briefing in Inv. No. 337-TA-794.  We noted that several other parties also submitted responses, offering their views on how an exclusion order in this case might affect the public interest.  These parties include:

Each of these parties warns the ITC that allowing exclusion orders for FRAND-pledged standard-essential patents may have adverse effects on U.S. consumers and the U.S. economy, particularly future standards-setting activity.  A brief summary of these public interest submissions is after the jump.

Cisco, HP, and Micron [Link]

Cisco, Hewlett-Packard, and Micron take the position that exclusion orders should generally not be available for FRAND-encumbered SEPs.  They cite a “growing consensus” among Congress, the FTC, and DOJ that sides against awarding such relief. However, they note that exclusion orders may be available if (1) a court or arbitrator has determined a FRAND rate and an ITC respondent has rejected that FRAND rate, or (2) the ITC respondent is outside the jurisdiction of the U.S. courts.

Cisco/HP/Micron also called for the ITC to reject the application of the Georgia-Pacific factors in the FRAND context, echoing an amicus brief filed in an Apple-Motorola Federal Circuit appeal.  They contend that the G-P factors “have limited to no utility in the context of today’s complex products and processes” — particularly in the context of RAND-encumbered SEPs.

Instead, Cisco/HP/Micron propose three methodologies to arrive at a “reasonable” royalty: (1) determining the incremental value of the patent over next best alternative; (2) determining value through apportionment; and (3) considering the “established royalty” for the patent to determine its economic value.  Interestingly, Cisco/HP/Micron note in a footnote that “a reasonable royalty and a RAND royalty are not exactly the same” and assert that it would be inappropriate for the ITC to try to determine what constitutes a RAND royalty in this case.

Retail Industry Leaders’ Association (RILA) [Link]

RILA asserts in its brief that allowing exclusion orders for FRAND-pledged SEPs “could transform [Section] 337 exclusion orders from shields into swords” and undermine the balance that the FRAND regime seeks to achieve.  (We’re not sure anyone really considers an ITC exclusion order to be “a shield,” but we digress.)  RILA argues that the appropriate remedy for infringement of a FRAND patent is the collection of FRAND royalties, awarded by a district court.  RILA warns that awarding exclusion orders in lieu of royalties “will inevitably result in reduced competition, stymied innovation of standards-compliant products and artificially inflated prices of products for consumers.”

Business Software Alliance (BSA) [Link]

The Business Software Alliance (a trade association which counts Apple among its members) echoes many of same concerns expressed by RILA.  BSA argues that exclusion orders on SEPs would have a “chilling effect on competition” and would harm consumers by inflating prices and creating entry barriers for new competitors.  BSA argues that if exclusion orders are available for SEPs, companies will forego developing or adopting new standards-compliant products, choosing instead to produce redundant or proprietary technologies and “Balkanizing” the market.

Association for Competitive Technology (ACT) [Link]

The Association for Competitive Technology, which describes itself as “the leading trade association representing more than 5,000 small- and medium-sized software and mobile app companies,” also urges the ITC to refrain from imposing an exclusion order as a remedy for FRAND-pledged SEPs.  ACT says that while it supports enforcement of IP rights, allowing an exclusion order for Samsung’s FRAND patent would “destabilize the standards setting system.”  Additionally, ACT claims that an exclusion order barring Apple’s products would disrupt the stability of the mobile app industry, adversely affecting its members’ businesses.