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It’s no secret that government agencies in the United States and abroad are paying more attention to standard-essential patent issues.  More evidence of this trend came this past Friday, when Deputy Assistant Attorney General Renata B. Hesse of the Antitrust Division of the U.S. Department of Justice delivered a speech at the Global Competition Review Antitrust Law Leaders Forum in Miami.  Hesse’s speech makes it clear that FRAND licensing issues are a high priority for the DOJ’s antitrust division, and that the agency remains open to exploring new ways of enforcing FRAND commitments — potentially including pursuing standard-essential patent holders for violations of Section 2 of the Sherman Act (anticompetitive monopolies or attempts to monopolize).
Continue Reading Antitrust Deputy Assistant AG’s speech may foreshadow increased DOJ enforcement activities relating to standard-essential patents

Yesterday Apple filed its opposition to Motorola’s motion to dismiss or transfer for lack of jurisdiction in Federal Circuit appeal No. 2013-1150.  This is Apple’s appeal of Judge Crabb’s dismissal of the Apple-Motorola FRAND/antitrust action (W.D. Wis. No. 3:10-cv-00178)).  Apple contends that the Federal Circuit has jurisdiction over Apple’s appeal of the dismissal of its declaratory judgment claims because (1) the hypothetical Motorola complaint at which Apple’s declaratory judgment claim was directed would be for patent infringement, and (2) the district’s court’s decision to dismiss the patent-specific DJ claims without prejudice does not deprive the Federal Circuit of jurisdiction.  As we anticipated in our post on Motorola’s motion to dismiss/transfer, some of Apple’s arguments in its opposition raise some interesting questions about whether jurisdiction over this appeal will be consistent with past and potential future appeals of orders in the Microsoft-Motorola RAND case.
Continue Reading Apple: Federal Circuit has exclusive jurisdiction over Apple-Motorola FRAND/antitrust appeal

CAFC

Motorola and Apple are currently facing off over patent-related issues in several ongoing judicial proceedings, including multiple appeals before the United States Court of Appeals for the Federal Circuit.  One of these Federal Circuit appeals was brought by Apple over Judge Crabb’s dismissal of Apple’s claims that Motorola violated the antitrust laws and breached its contracts with SSOs in conducting its SEP-related licensing and enforcement activities.  But on January 25, Motorola filed a motion with the Federal Circuit to dismiss Apple’s appeal (or transfer it to the Seventh Circuit), asserting that the Federal Circuit lacks jurisdiction to hear the case.  While at first blush this seems like just a mundane dispute over civil procedure issues, a decision on this motion may have significant consequences for future FRAND-related proceedings.Continue Reading Motorola disputes Federal Circuit’s jurisdiction over Apple’s FRAND-related appeal, argues for dismissal or transfer

Germany

While much of the attention over standard-essential patent litigation focuses on disputes taking place in the United States, the U.S. is not the only venue seeing these showdowns.  SEP-related issues have also arisen in Australia, in Korea, and in Europe (both in the courts and in European Commission investigations).  The courts in Germany — which has recently become a hotbed for patent litigation — have developed a unique procedure for dealing with the assertion of standard essential patents.  Named for a 2009 decision by the Federal Supreme Court of Germany, this is commonly known as the “Orange Book” defense or procedure (or sometimes as the dolo agit or good faith defense).  In this post, we aim to provide a background of this case and some examples of cases where the Orange Book defense has been invoked.


Continue Reading A RANDom glance abroad: German Patent Courts and the “Orange Book” defense

Assertion of standard-essential patents are all the rage at the ITC these days, with an upcoming trial on InterDigital’s claims (Inv. No. 337-TA-800), another recent complaint filed by InterDigital, dueling Ericsson-Samsung complaints, and the highly anticipated Final Determination in ITC Inv. No. 337-TA-794 involving Apple and Samsung due in March.  And today, a company named Adaptix — a subsidiary of noted non-practicing entity Acacia Research — threw its hat into the ring, firing off a Section 337 complaint accusing Ericsson’s 4G LTE base stations of infringing U.S. Pat. No. 6,870,808, titled “Channel Allocation in Broadband Orthoganol Frequency-Division Multiple-Access/Space-Division Multiple-Access Networks.”  But this might not be your typical standard-essential patent case — it has a couple of twists.
Continue Reading Acacia Research subsidiary Adaptix files new ITC complaint accusing Ericsson of infringing 4G LTE-essential patent

Earlier this month, InterDigital Communications filed a Section 337 complaint with the ITC, alleging that Samsung, Nokia, ZTE, and Huawei infringed several of InterDigital’s 3G and 4G-essential patents.  As we noted in our earlier post on the matter, InterDigital included a statement regarding the public interest along with its complaint, attempting to preemptively assuage any public interest concerns the Commission may have due to the inclusion of standard-essential patents in the complaint.  Over the past two weeks, though, the proposed respondents have each filed their own public interest statements with the ITC, asserting a number of reasons why the public interest might be adversely affected by the institution of an investigation based on InterDigital’s complaint.
Continue Reading InterDigital, Nokia, others dispute public interest implications of 3G/4G patent assertions

Early in January we noted that a non-practicing entity named Steelhead Licensing had filed a number of complaints for patent infringement against various wireless device manufacturers and cellular carriers.  Of particular note in those suits was that the patent at issue in all of the actions — U.S. Pat. No. 5,491,834, entitled “Mobile Radio Handover Initiation Determination” — was previously owned by British Telecom, is due to expire next month, and (according to Steelhead, apparently) is essential to various 3G and 4G wireless communications standards.  On Friday, January 11, Steelhead expanded its assertion activities relating to the ‘834 patent, filing infringement actions against Acer, Amazon.com, Asustek, and Dell.
Continue Reading Steelhead Licensing expands cellular-essential patent assertion activities

Today, a notice and request was published in the Federal Register, inviting the public to comment on the FTC’s proposed consent agreement with Google and Motorola Mobility in FTC File No. 121-0120.  This proposed consent agreement would close the FTC’s investigation into certain Google/Motorola Mobility business practices concerning licensing and assertion of standard-essential patents that Motorola previously agreed to license on RAND terms (for more details, see our prior post on the consent agreement).
Continue Reading FTC invites public to comment on consent agreement with Google/Motorola Mobility

Because so many SEP-related issues have arisen over the past year, we will periodically revisit some of the more important episodes with a brief post.  Next month, the U.S. International Trade Commission will issue a Final Determination in In the Matter of Certain Electronic Devices, Including Wireless Communication Devices, Portable Music and Data Processing Devices, and Tablet Computers (No. 337-TA-794), a Section 337 patent infringement action brought by Samsung against Apple.  This presents us with a timely opportunity to discuss the background of some of the SEP and FRAND-related issues of first impression that may be decided by the Commission in the case.

The Samsung-Apple ITC investigation (337-TA-794) originated with a complaint brought by Samsung against Apple back in June 2011, in which Samsung accused various Apple products of infringing five patents.  Two of these patents — U.S. Pat Nos. 7,706,348 and 7,486,644 — were alleged by Samsung to be essential to the UMTS 3G cellular standard.  Not surprisingly, Apple claimed that Samsung’s FRAND obligations with respect to these SEPs prevent Samsung from receiving an exclusion order, in the event Apple is found to violate Section 337.Continue Reading Catching up on . . . the Samsung-Apple ITC action (Inv. No. 337-TA-794)

Late last week, Apple Inc. filed a notice of appeal with the United States District Court for the Western District of Wisconsin, announcing its intent to appeal to the Federal Circuit Judge Barbara B. Crabb’s dismissal of Apple’s SEP-related contract and antitrust claims against Motorola Mobility (case No. 3:11-cv-00178-bbc).  This presents us with an opportunity to do a brief “catching up on” post on this particular portion of the larger Apple-Motorola dispute.
Continue Reading Catching up on … Apple v. Motorola Mobility (W.D. Wis.)