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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.
Continue Reading A final round-up of new public interest submissions in Samsung-Apple ITC case (Inv. No. 337-TA-794)

ITC LogoLast week, both Apple and Samsung filed their initial submissions in response to the U.S. International Trade Commission’s March 13 order for additional briefing in In the Matter of Certain Electronic Devices, Including Wireless Communication Devices, Portable Music and Data Processing Devices, and Table Computers (Inv. No. 337-TA-794).  In a post last Friday, we discussed the submission by the ITC’s Office of Unfair Import Investigations.  After the jump, we’ll give an overview of the positions set forth in the parties’ respective briefs.  It will not be a surprise to anyone following the smartphone wars or standard-essential patent issues that Apple and Samsung vehemently disagree over nearly everything having to do with the standard-essential patent and FRAND issues in this case.
Continue Reading New ITC briefs filed by Apple, Samsung demonstrate fundamental dispute over standard-essential patents and meaning of FRAND

This past Wednesday, April 3 was the deadline for the parties and the public to submit responses to the U.S. International Trade Commission’s request for additional briefing in Inv. No. 337-TA-794 (Samsung-Apple).  In addition to Apple and Samsung, several other parties submitted responses, including:

In a later post, we will summarize the submissions from Apple, Samsung, and the various third parties.  But in this post we’ll address the brief submitted by the OUII (or ITC “Staff”) — a third party that represents the public interest in many ITC cases (and who, as we recently noted, has taken a keen interest in SEP-related issues of late).

Notably, OUII expresses the view that public interest considerations do not bar the issuance of an exclusion order based on Apple’s alleged infringement of Samsung’s 3G-essential technology.  In OUII’s view, even if Samsung has FRAND obligations with respect to the standard-essential patents at issue, Apple has not carried its burden to show that Samsung violated these obligations.
Continue Reading ITC Staff: Exclusion order is an appropriate remedy for Apple infringement of Samsung SEP

Chrimar Systems (also known as CMS Technologies) is a non-practicing entity that owns patents that it claims are essential to IEEE Power-over-Ethernet technology — amendments 802.3af and 802.3at to the IEEE 802.3 Ethernet standard.  Chrimar has litigated several cases throughout the years based on these patents, including a (now-terminated) ITC case (Inv. No. 337-TA-817).  Chrimar’s website lists several licensees for its Power-over-Ethernet patents, as well.

But now it looks like Chrimar’s standard-essential portfolio just got a little bit smaller.  Yesterday, in Chrimar Systems v. Foundry Networks (now Brocade Communications Systems), the Federal Circuit affirmed a lower court ruling that had invalidated claims 14 and 17 of U.S. Patent No. 5,406,260.  
Continue Reading Chrimar Systems’ Power-over-Ethernet claims found invalid on appeal

Last week we discussed a couple of amicus briefs in the Apple-Motorola Federal Circuit appeal that addressed standard-essential patent issues.  Intel supported Apple’s view that injunctions should generally not be available for FRAND-pledges SEPs, while Qualcomm supported Motorola’s contention that there is no such blanket restriction.  In this post, we’ll address two more briefs, both of which were filed by parties supporting Apple: (1) the Business Software Alliance, which is a trade association of software and hardware technology companies; and (2) a group of law school professors.


Continue Reading More amici support Apple’s opinion of FRAND: Business Software Alliance and law professors give their views

If anyone needed more evidence that the U.S. International Trade Commission is paying a lot of attention to standard-essential patents and FRAND-related issues, they received some yesterday.  The Office of Unfair Import Investigations (OUII), a neutral third party who commonly participates in ITC investigations as a representative of the public interest, notified the ITC…

CAFCEarlier today we summarized the amicus brief filed by Intel in the Apple v. Motorola Federal Circuit appeal, and we noted that a number of other not-yet-publicly-available amicus briefs were also filed with the court.  Today, the amicus brief filed by Qualcomm hit the docket — and out of all of the recent amicus briefs, it’s the only one that was expressly filed in support of Motorola.

As it has consistently argued in the past, Qualcomm — a holder of a significant portfolio of SEPs — argues here that a FRAND commitment does not categorically preclude injunctive relief, and it urges the Federal Circuit to refrain from adopting such a rule.  Qualcomm also argues against the particular methodologies of calculating reasonable royalty damages for both FRAND-pledged essential patents and non-essential patents (e.g., the so-called ex ante or incremental value rules) that certain amici have advocated for.
Continue Reading Qualcomm sides with Motorola on FRAND/SEP issues in Apple v. Motorola Federal Circuit appeal

CAFCBack in January, we summarized a number of amicus briefs filed by a diverse group of companies and organizations concerning the issues in the Apple v. Motorola Inc. Federal Circuit appeal of Judge Posner’s decision to dismiss the parties’ respective patent infringement cases.  We noted that because the Federal Circuit extended the deadline to file amicus briefs until seven days after Motorola’s opening brief was due, more parties were certain to make their views on standard-essential patent and FRAND issues known to the court.  Sure enough, several others filed amicus briefs last week.  Yesterday, the amicus brief filed by Intel became publicly available.

As you can see from our summary below, Intel’s brief clearly supports Apple, at least with respect to Apple’s cross-appeal of the standard-essential patent issues in the case.
Continue Reading Intel files amicus brief supporting Apple in Federal Circuit appeal of Judge Posner decision

For the last few months, Samsung and Ericsson have been engaged in a wide-ranging patent infringement skirmish, both in the Eastern District of Texas and in the U.S. International Trade Commission (Inv. Nos. 337-TA-862, 337-TA-866).  Many of the infringement assertions in these cases relate to the 4th-generation Long-Term Evolution (LTE) wireless communications standard, as well as other wireless communications standards promulgated by ETSI and IEEE.  Earlier this week, Samsung filed its Answer and Counterclaims in response to Ericsson’s complaint in case no. 6:12-cv-00894 in the Eastern District of Texas.

Pulling no punches, Samsung not only accuses Ericsson of breaching its FRAND obligations (an accusation it has previously made), but also asserts additional patents against Ericsson — including patents already being asserted in the ITC.  And notably, Samsung also paints Ericsson as a non-practicing entity that is trying to engage in patent hold up — Samsung states that Ericsson “now feels unhinged as a non-practicing entity in the mobile phone market to extort vastly unreasonable and discriminatory license fees,” and that it “seeks to ignore over a decade of licensing history between the companies and to travel down a new road as an NPE extracting irrational sums from Samsung under threat of an ITC exclusion order.”  Rhetoric aside, though, the meat of Samsung’s answer is really about its FRAND-related defenses and infringement counterclaims.


Continue Reading Samsung-Ericsson standard-essential patent battle heats up as Samsung asserts additional patents in E.D. Tex.

Last month, Judge James F. Holderman dismissed various claims brought by Cisco, Motorola Solutions, and NETGEAR against Innovatio IP Ventures, LLC over Innovatio’s vast licensing and litigation campaign relating to the IEEE 802.11 Wi-Fi standard.  These suppliers claimed that Innovatio — in threatening the suppliers’ customers and bringing litigation over standard-essential patents — violated various unfair competition laws, and even the Federal Racketeering and Corrupt Organizations Act (“RICO”).  But the court found that Innovatio’s conduct was protected petitioning activity under the Noerr-Pennington doctrine, and that the suppliers did not properly plead that the conduct was a “sham” that would exempt this activity from protection.  Yesterday, the suppliers filed a motion for entry of final judgment under Federal Rule of Civil Procedure 54(b), which indicates that the suppliers want to appeal the dismissal of these claims as soon as possible to keep the heat on Innovatio.
Continue Reading Wi-Fi suppliers seek to facilitate quick appeal of dismissal of RICO, unfair competition claims against Innovatio