The United States International Trade Commission (ITC) is a quasi-judicial agency with broad investigative powers relating to trade practices. These powers include the ability to investigate unfair trade practices relating to the importation of products that infringe valid U.S. patents — so-called “Section 337 actions” (Section 337 actions can encompass other conduct, but are commonly used to target patent infringement). But because the ITC may only issue injunctive relief (via exclusion orders and cease & desist orders), and cannot award monetary damages, the assertion of standard-essential patents in Section 337 actions has become a subject of great debate. Within about a month, the Commission will issue a Final Determination in Investigation No. 337-TA-794 (involving Samsung and Apple) that may address the propriety of asserting FRAND-pledged SEPs in Section 337 actions. In the meantime, however, there are several ongoing ITC investigations where standard-essential patents are being asserted. Below is a brief summary of where each of these cases currently stand:
Last week, the ITC released the public version of Order No. 42 in In the Matter of Certain Audiovisual Components and Products Containing the Same, Inv. No. 337-TA-837. In this order (the confidential version of which issued back in October 2012), Administrative Law Judge David P. Shaw granted respondent Realtek Semiconductor’s motion to compel complainants LSI Corp. and Agere Systems to provide certain RAND-related discovery. This includes information regarding LSI and Agere’s activities in standard-setting organizations, as well information about licensing and third-party products that practice the asserted patents. This order provides some incremental guidance on the type of evidence that ALJs consider relevant to RAND-based affirmative defenses in Section 337 ITC actions.
Continue Reading Motion to compel RAND-related discovery granted (U.S.I.T.C. Inv. No. 337-TA-837)