Earlier this week, the ITC issued the public version of ALJ David P. Shaw’s Initial Determination finding no violation of Section 337 in in In the Matter of Certain Wireless Devices with 3G Capabilities and Components Thereof, Inv. No. 337-TA-800 — the ITC’s investigation into InterDigital’s accusations that Huawei, Nokia, and ZTE infringed several 3G-essential InterDigital patents. But even when no Section 337 violation is found, the ALJ must still issue his recommendations on remedy and bonding (the amount an infringer must pay to continue to import infringing devices during the Presidential review period) to the Commission. The public version of the ALJ’s Recommendation Determination (RD) is now available.
ALJ Shaw recommends that — in the event the Commission overturns his findings and concludes that there has been a violation of Section 337 — the Commission issue a limited exclusion order prohibiting the Respondents from importing the infringing products into the United States. The ALJ also recommends that the Commission issue a cease and desist order against certain of the Respondents, Nokia, Inc. and Huawei Device USA, who maintain commercially significant inventories of accused products in the United States. But even if the Commission finds a 337 violation, the ALJ does not recommend that the Respondents be required to pay a bond, because InterDigital stipulated that it would not seek a bond in the case.
Because InterDigital’s infringement allegations implicate ETSI/ITU 3G wireless standards and InterDigital’s patents are (at least allegedly) subject to FRAND obligations, the Respondents had argued that an exclusion order should not issue — or should at least be delayed until a FRAND determination is made in the parallel district court case. But ALJ Shaw rejects these arguments, noting that he addressed the FRAND defenses in his Initial Determination and concluded that Respondents failed to prevail on any of these defenses. He also notes that while FRAND may be related to public interest considerations, the issue of public interest is generally reserved for the Commission and was not delegated to the ALJ in this investigation. Therefore, any FRAND-related public interest considerations will have to be evaluated separately by the full Commission (who, as we learned in the Samsung-Apple investigation, may order significant briefing on the issue).