Well that didn’t take long — yesterday the Ninth Circuit dismissed LSI’s appeal from Judge Whyte’s preliminary injunction that enjoined LSI from seeking to enforce any exclusion order entered by the ITC on the standard essential patents at issue in the district court litigation before LSI first offered a RAND license to Realtek.  Our March 13, 2014 post summarized this appeal issue and the pending post-trial motion by Realtek that seeks to essentially convert the preliminary injunction into a permanent injunction (hearing scheduled May 9, 2014). 

Recall that both parties agreed that, although the ITC did not find a Section 337 infringement violation so no exclusion order issued, the issues presented in the Ninth Circuit appeal of the preliminary injunction were not moot because, for example, LSI could appeal the ITC’s decision and revive the prospect of an exclusion order.

The Ninth Circuit disagreed.  The Ninth Circuit ruled that, by its own terms, the preliminary injunction would be “moot” if the ITC did not find an infringement violation.  Thus “the preliminary injunction itself is no longer operative by virtue of the initial decision of the ITC that there was no Section 337 violation.” So the appeal was dismissed.

The Ninth Circuit’s dismissal of the preliminary injunction appeal puts the ball squarely in Judge Whyte’s court — without guidance from this Ninth Circuit appeal — to decide whether and to what extent LSI should be permanently enjoined from enforcing any exclusion order or injunctive relief prior to offering RAND licensing terms on the WiFi SEPs at issue.