The ITC has issued a notice in the InterDigital investigation (No. 337-TA-868), indicating that the Commission has reviewed ALJ Essex’s Final Initial Determination reversed certain findings, taken no position on others, and ultimately terminated the investigation with a finding of no violation. ALJ Essex issued his initial ruling on June 13, 2014, finding that neither ZTE nor Nokia infringed InterDigital’s patents, which were alleged to be essential to 3G/4G standards, and that InterDigital had committed no FRAND violation (see our June 19 and July 2 posts for additional background).
According to the notice, the Commission has taken no position with respect to FRAND issues raised by respondents’ affirmative defenses:
The Commission finds that it is in the interest of the efficient use of administrative, judicial, and private resources for the domestic industry and FRAND issues to be decided, if at all, subsequent to final disposition of the pending appeal in InterDigital Communications LLC v. ITC, No. 2014-1176 (Fed. Cir.), which involves many of the same parties and issues with regard to related patents.
In the pending appeal, InterDigital is challenging the ALJ’s claim construction ruling in ITC Inv. No. 337-TA-800 (see our February 24, 2014 post for more information), which involves the two Power Ramp-up Patents (Nos. 7,706,830 and 8,009,636) also at issue in the 868 investigation. On appeal, InterDigital is arguing the ITC’s finding of no violation is based on erroneous claim constructions and should be reversed.
With respect to the present investigation (337-TA-868), you may recall from our July 2, 2014 post that ALJ Essex’s Final Initial Determination included a lengthy FRAND analysis, which was highly critical of respondents that assert FRAND defenses without having first availed themselves of SSO procedures for resolving situations where licenses are not available. After a solicitation for comments on the public interest, the ITC received a number of letters from Ericsson, the Innovation Alliance, Microsoft, Senator Robert P. Casey, Jr. (D-PA), and Senator Patrick J. Toomey (R-PA), generally directed to ALJ Essex’s FRAND analysis and whether SEP owners should be entitled to exclusion orders on FRAND-encumbered patents (see our July 9, 2014 post for a summary of the third party comments).
The notice further indicates that “[t]he reasoning in support of the Commission’s decision will be set forth in fuller detail in a forthcoming opinion.”