Yesterday the European Commission started soliciting public comments on Samsung’s proposed commitment that, during the next five years, Samsung would not seek injunctive relief within the European Economic Area (EEA) on standard essential patents (SEPs) in the field of mobile communications against companies that agree to a particular framework for determining fair, reasonable and non-discriminatory

The National Academy of Sciences has published a 140-page report entitled “Patent Challenges for Standard-Setting in the Global Economy: Lessons from Information and Communication Technology.”  The report presents several suggestions to standard setting organizations (SSOs) or government bodies regarding standard essential patents (SEPs) in a few topic areas:

  • Interpretation of FRAND: Suggests that SSOs

A month ago, we discussed how Microsoft and Motorola filed dueling summary judgment motions in an attempt to eliminate some of the issues from the upcoming RAND breach of contract jury trial in Seattle (currently set to begin August 26).  Judge James L. Robart held an oral argument on July 31, and this morning, his order hit the docket (the order is actually dated yesterday — Judge Robart is apparently not taking Sundays off).

[2013.08.11 Order on Microsoft-Motorola SJ Motions]

As you can tell from the title of this post, Judge Robart granted summary judgment on some — but not nearly all — of the issues briefed by the parties.  Both Microsoft and Motorola prevailed on some issues and lost on others.  The bottom line is that the jury will still have a lot to decide in this case.  After the jump, we’ll take a look at how Judge Robart ruled — starting with the motions that he denied.


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FTCToday, the Federal Trade Commission announced that it has approved a modified final order that settles its investigation into Motorola Mobility’s alleged anti-competitive practices surrounding its standard-essential patent licensing and enforcement program (for more background, see our original post on the case).  Here’s the Commission’s final decision and order, as well as a final

CAFCLast week, the Federal Circuit granted a motion by Microsoft for permission to file an amicus brief in the Apple-Motorola appeal (No. 12-1548, Judge Posner edition).  Microsoft then filed its amicus brief, becoming the latest in a long time of companies (see, e.g., here, here, here, and here) to weigh in on the case.  Today, the public version of Microsoft’s brief became available.  In it, Microsoft supports Apple and Judge Posner, but cautions the Federal Circuit against making an overly broad ruling and deciding issues related to standard-essential patents and RAND licensing obligations that are not present before the court.

[2013.06.04 Microsoft Amicus Brief (12-1548)]

Microsoft pulls no punches — it argues at the outset that Motorola’s positions “are wrong as a legal matter and terrible as a policy matter.”  That should come as no surprise, given Microsoft’s current litigation disputes with Motorola (as well as ongoing competition with its parent company, Google).  But Microsoft claims that its interest in this case goes far beyond its adversarial relationship with Motorola, arguing that as an active participant in many SSOs and implementer of many standards, Microsoft wants to ensure that standards are broadly implemented for the benefit of the public.


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ITC LogoOne thing that has frustrated many followers of the Samsung-Apple ITC case is the currently unavailability of a public version of the Commission’s Final Determination.  Generally, the only insight into the ITC’s reasoning came from the limited information in the Commission’s Notice of Final Determination.  But for those of you who are interested, we thought it’d be worth taking a look at the publicly-available documents that spell out the specific exclusionary relief awarded to Samsung in this case:

  1. 337-TA-794 Limited Exclusion Order
  2. 337-TA-794 Cease and Desist Order

After the jump, we’ll dive into these in a little more detail.


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In the wake of the ITC’s landmark exclusion order barring imports of certain Apple 3G products, we noticed an interesting question raised by Prof. Brian J. Love of Santa Clara law school, among others:

BrianJLove

Professor Love is referring to one of several legislative recommendations and executive actions related to the patent system and patent litigation

While much of the focus on standard-essential patent litigation issues has been focused on Microsoft-Motorola, Apple-Samsung, and the InterDigital cases, these are far from the only cases dealing with SEP issues.  District courts and the ITC continue to develop case law on SEP and RAND-related issues.

In an order issued yesterday in Realtek Semiconductor v. LSI (No. 12-cv-03451, N.D. Cal.), Judge Ronald Whyte of the Northern District of California issued a preliminary injunction that purports to prevent LSI from enforcing an ITC exclusion order until LSI has complied with its IEEE-related RAND obligations.  According to the order [LINK], this means that LSI must wait to enforce any exclusion order until: (1) the court has determined an appropriate RAND rate for LSI’s 802.11-essential patents, (2) LSI offers a license to Realtek at that rate; and (3) Realtek refuses to enter into a license at the judicially-determined RAND rate (which, as the court states, “Realtek indicates it will not do.).

With the ITC’s decision in the 337-TA-794 investigation (on the propriety of exclusion orders for FRAND-pledged essential patents) involving Samsung and Apple due by the end of the month, this is certainly an interesting development.  But given the way the ITC operates, we’re not so sure that the court’s order is going to have the desired effect.  Let’s take a look at Judge Whyte’s order, shall we?


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Much of the activity and attention in the standard-essential patent world over the last few days has been focused on Judge James L. Robart’s groundbreaking decision in the Microsoft-Motorola RAND breach of contract case.  But that wasn’t the only RAND-related bit of news happening this past Thursday — that same day, in the Federal Circuit, Apple filed its response to Motorola’s appeal of Judge Posner’s decision to deny both damages and injunctive relief to Motorola in a case involving Apple’s alleged infringement of Motorola standard-essential patents.

Due to the fact that the Federal Circuit has consolidated appeals by both parties, Apple’s brief is technically both a response brief and a reply brief — but we will only deal with the SEP-specific issues here.  In the brief, which we’ll delve into after the jump, Apple urges the Federal Circuit to uphold Judge Posner’s findings that, even if infringement could be proven: (1) Motorola failed to introduce a cognizable damages theory for infringement of the SEPs at issue; and (2) Motorola could not show entitlement to injunctive relief for its FRAND-encumbered patents.

Link: [Apple April 25, 2013 Appellate Brief]


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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…
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