Earlier this week, we discussed N.D. Cal. Judge Ronald Whyte’s order granting partial summary judgment and issuing a preliminary injunction in a Realtek v. LSI district court case.  As we explained in our post, while the district court found that LSI had breached its contractual RAND obligations by filing an ITC complaint without first making a RAND offer to Realtek, and therefore issued an order enjoining LSI from enforcing any exclusionary relief in the pending ITC case against Realtek (No. 337-TA-837), it’s unclear whether the preliminary injunction will actually have any effect (because ITC exclusion orders are enforced by Customs and Border Protection, often without any action taken by the ITC complainant).  As of now, the Initial Determination in the -837 case is due by July 18, with the Commission’s Final Determination (where an exclusion order would be issued if appropriate) due by November 18.

But not surprisingly, yesterday Realtek filed a short letter with presiding Administrative Law Judge David P. Shaw, attaching Judge Whyte’s order [LINK].  In the letter, Realtek states that:

Judge Whyte’s findings in the Order resolve several issues relating to Realtek’s RAND-related defenses in this investigation, such as estoppel and breach of contract. Judge Whyte’s Order also enjoins LSI and Agere from seeking to enforce any injunctive relief until the completion of a trial on the merits in the district court proceeding. See Order at 11-14.

If Your Honor needs additional information or related briefing papers, please do not hesitate to contact us.

Two quick things to point out — first, Realtek’s claim that the district court’s findings “resolve several issues” might be overstating things a bit, as the order is not a final judgment and likely doesn’t have res judicata or preclusive effects (at least at this point).  Second, Realtek’s offer of additional briefing may be a signal that Realtek wants either ALJ Shaw or the Commission itself to bring the investigation to a halt now, rather than proceeding to the Initial and Final Determination stages.

We will continue to keep an eye on this case to see what (if any) effect this has on ALJ Shaw’s handling of the investigation.

[UPDATE]  For its part, Apple has filed its own Notice of New Authority and New Facts Relevant to the Issues on Review with the ITC in Inv. No. 337-TA-794, where the Commission’s Final Determination is due by May 31.  Apple argues that the situation between it and Samsung is “strikingly similar” to the facts that gave rise to the Realtek-LSI injunction.  Apple argues that prior to filing its ITC complaint, Samsung never made a license offer that was limited to its FRAND-encumbered SEPs — and Apple also argues (as it has in the past) that Samsung’s use of the end product price as a royalty base and its efforts to seek injunction relief are further evidence of its FRAND violations.  Finally, Apple accuses Samsung of making contradictory arguments in defending itself from SEP infringement allegations in its district court case against Ericsson.  Apple argues that this shows that it would not be in the public interest to issue an exclusion order in the -794 case.  [/UPDATE]