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For those of you unfamiliar with the pace of litigation at the U.S. International Trade Commission, it is fast.  Just several days ago, we were writing about the comments on the public interest submitted in Inv. No. 337-TA-794 by Apple and Samsung, the ITC Staff, and several other interested non-parties.  Late last week, Apple, Samsung, and the ITC staff each submitted responses to these initial public interest comments.

Barring unexpected additional submissions from the parties (e.g., a notice of supplemental authority citing Judge Robart’s forthcoming ruling in the Microsoft-Motorola RAND case, which may come down any day), the briefing in this important ITC case should now be all wrapped up.  Now, the waiting game begins — the Commission has until May 31 decide whether it will issue an exclusion order barring Apple products, should it find that they infringe Samsung’s (alleged) 3G UMTS-essential patent(s) (although a ruling could, of course, come before then).

A round-up of and links to the recent responsive submissions, after the jump…
Continue Reading Public interest briefing wraps up in Samsung-Apple ITC battle (337-TA-794) — parties now play the waiting game on exclusion orders and SEPs

Recently Apple explained to the ITC that many of the standard-essential patents asserted by Samsung against Apple have failed under the scrutiny of litigation, resulting in a finding of non-infringement or invalidity.  Well, Apple can now chalk up another SEP win on the board, although one that has nothing to do with Samsung.  Yesterday, Judge Sue Robinson of the U.S. District Court for the District of Delaware ruled on summary judgment that Apple does not infringe two patents alleged by Golden Bridge Technology to be essential to the 3G W-CDMA wireless telecommunications standard.

Golden Bridge is a noted non-practicing entity whose “primary business is the creation, licensing, and enforcement of Wideband CDMA technology and intellectual property.”  The company is involved in several lawsuits over its allegedly-essential cellular technology, and even brought (and lost) an antitrust case against several mobile device makers a few years back, where it had accused the mobile device companies of excluding Golden Bridge’s technology from the standard-setting process.
Continue Reading Delaware court says Apple does not infringe Golden Bridge W-CDMA patents

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

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

If there was any doubt about the importance of standard-essential patent issues at the ITC, we can certainly put that to rest.  For the second time in a week, the Commission issued a Notice extending the target date for its Final Determination in Inv. No. 337-TA-794, the Section 337 investigation based on Samsung’s August 2011 complaint against Apple.  But unlike its last brief extension, the ITC this time extended its deadline until May 31, 2013 — and requested additional comments on the public interest and briefing from the parties on several issues.

The Commission’s particular questions (reproduced after the jump) show just how seriously the ITC is taking standard-essential patent issues.  Additionally, the content of these questions may imply that the Commission could be leaning toward a finding that Apple infringes U.S. Patent No. 7,706,348 — a patent that Samsung has alleged is essential to the UMTS 3G cellular standard — and is now trying to decide what if any remedy it should order.Continue Reading ITC again extends target date in Samsung-Apple case (337-TA-794), asks for additional public interest comments and party briefing

Yesterday we covered InterDigital’s opposition to Huawei, Nokia, and ZTE’s efforts to stay the ITC’s investigation into InterDigital’s latest Section 337 complaint pending a potential FRAND determination in the District of Delaware.  We also noted that the other respondent, Samsung, did not join the motion but stated that it did not oppose such a stay.    The ITC Investigative Staff from the Office on Unfair Important Investigations (a third party that participates in many ITC investigations as a representative of the public interest) also filed its own response to the motion yesterday.  The Staff opposes the motion to stay for a variety of reasons, which we will get into below.
Continue Reading ITC Staff opposes motion to stay pending FRAND determination in InterDigital Section 337 investigation (337-TA-868)

Today was the target date for the ITC’s Final Determination in In the Matter of Certain Electronic Devices, Including Wireless Communication Devices, Portable Music and Data Processing Devices, and Tablet Computers (Inv. No. 337-TA-794).  But today, the Comission issued a notice to extend the target date for completion of the investigation until next…

ITC LogoYesterday, InterDigital filed its opposition to Huawei & ZTE’s motion (later joined by another respondent, Nokia) to stay Inv. No. 337-TA-868, which is the ITC’s investigation into InterDigital’s 3G/4G standard-essential patent infringement-based Section 337 complaint.  Much as it did in its prior opposition to Huawei/ZTE’s attempts to seek an expedited FRAND determination in Delaware district court, InterDigital here claims that nothing in the motion to stay counsels staying the investigation pending a determination of FRAND terms in Delaware — in fact, InterDigital attached its opposition to expedite the Delaware proceedings as an exhibit to its ITC stay opposition.  After the jump, we’ll provide a brief summary of InterDigital’s arguments against staying the ITC case.

InterDigital wasn’t the only one filing papers in this case yesterday, though — Samsung also filed a response to the motion to stay.  Samsung’s position is, succinctly, that “[w]hile Samsung does not join the Motion, Samsung does not oppose the requested stay.” (You may recall that Samsung has its own motion to terminate some of InterDigital’s infringement claims pending in this case).Continue Reading InterDigital opposes Huawei/Nokia/ZTE’s efforts to stay ITC investigation, saying motion is “based on speculation upon speculation”