Today, the U.S. International Trade Commission (ITC) issued a Notice of Commission Final Determination  following its review of Administrative Law Judge (ALJ) Shaw’s September 2017 rulings concerning, among other things, three patents alleged to be essential to the Linear Tape Open (LTO) 7 standard (LTO-7). (see our Dec. 19, 2017 post summarizing ALJ Shaw’s decision). 

The U.S. International Trade Commission (“ITC”) recently gave Notice that it will review some parts of the September 2017 Initial Determination and Recommended Determination on remedy by administrative law judge (“ALJ”) Shaw concerning patents alleged to be essential to the LTO Consortium’s  Linear Tape Open (“LTO”) standard for high-capacity, single-reel magnetic tape storage.

In September, ALJ Shaw found that the claims of one patent alleged to be essential to the LTO-7 Standard were valid and infringed, but that claims of two other alleged essential patents were not infringed.  He found that none of the asserted patent claims were essential to the LTO-7 Standard.  He also rejected Sony’s defenses that Fujifilm had breached an agreement with the LTO Consortium to license its essential patents to third-parties like Sony.  Based on those rulings, ALJ Shaw further recommended that a limited exclusion order should be entered and that Sony’s public interest arguments about the claims being essential to the LTO-7 standard did not require tailoring or curbing such an exclusion order.

The ITC full Commission has now decided to review part of ALJ Shaw’s liability determination, including issues about whether the alleged essential patents are infringed, valid or essential to the LTO-7 Standard.  Further, the Commission will consider the form of any exclusionary relief, including whether and to what extent public interests — such as Sony’s essentiality claim — counsel against or limit an exclusion order.  The parties and public may file initial written submissions on exclusionary relief and the public interest by December 27, 2017; reply written submissions must be filed by January 5, 2018.

We summarize  the decision below on the standard essential patent (“SEP”) issues.  We also discuss an Order Denying Preliminary Injunction entered a few weeks after ALJ Shaw’s decision here where Judge Gardephe in the Southern District of New York denied Sony’s motion to enjoin Fujifilm from continuing this ITC litigation.  Judge Gardephe’s decision provides more unredacted insight into the alleged LTO-7 licensing commitment at issue.  For example, Judge Gardephe’s decision indicates that the licensing commitment at issue was not a FRAND commitment, but apparently a commitment to enter nondiscriminatory licenses under Fujifilm’s standard licensing terms.  Further, the licensing commitment concerned essential patent claims, defined as claims “which must of necessity be practiced for compliance with the LTO7 Format.”
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Back in August, we reported on a series of four patent suits filed in the Southern District of Florida by a group of MPEG LA MPEG-2 patent-pool-licensors targeting television manufacturers Craig Electronics, Curtis International, Motorola, and ViewSonic.  The litigation now appears to be settled with respect to all parties except for ViewSonic, whose case was

A couple weeks ago, we posted about an interesting pretrial damages ruling in a patent infringement case (actually, several cases) brought by non-practicing entity Wi-LAN against a number of standards-compliant device makers (Sony, Ericsson, Alcatel-Lucent, and HTC).  But yesterday, an Eastern District of Texas jury decided that the damages issue was irrelevant, finding that all

Over the past few years, courts have begun cracking down on improper damages theories.  The Federal Circuit’s 2012 opinion in LaserDynamics v. Quanta is instructive on this point, noting that in the absence of evidence that the patented functionality is the source of the demand for the entire product, then damages must be based on

This past Wednesday, the Blu-ray patent pool One-Blue, LLC and several of its licensors (Philips, Panasonic, Pioneer, and Sony) filed a patent infringement lawsuit in Delaware district court, accusing Imation Corp. of infringing several patents that are either essential or related to the Blu-ray Disc Assocation’s (BDA) Blu-ray standards.

[One-Blue v Imation Complaint]


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On Friday, January 4, 2013, a non-practicing entity named Steelhead Licensing LLC filed a litany of SEP-related lawsuits in the United States District Court for the District of Delaware against various wireless device manufacturers and cellular carriers.  Each of the entities is accused of infringing a single, soon-to-expire (on Feb. 13) patent — U.S. Pat. No. 5,491,834, entitled “Mobile Radio Handover Initiation Determination.”
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