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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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.
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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

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.
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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.


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