Mike Wuerthele
A panel of judges at the US International Trade Commission is reviewing a previous ruling that the agency made, and it could overturn a decision that an iPhone ban is not in the public interest if Apple infringed a Qualcomm patent.
Late on Wednesday, the USITC declared that it would review retired Administrative law judge Thomas Pender's ruling that Apple infringed one Qualcomm patent, but shouldn't face a product ban that was being sought. The review is in its entirety for the one patent that Judge Pender viewed as violated, meaning that the validity of the one patent will be re-examined, as well as the refusal of a product ban.
"We are pleased that the Commission is going to review the Administrative Law Judge's recommendation that no ITC remedy should result from a finding of infringement," Qualcomm's executive vice president and general counsel Don Rosenberg said after the USITC announced the re-examination.
In that re-examination, the USITC said that it will consider not just if the patent is infringed, but if there are any national security implications in a ruling, and how long it would take Apple to design around a ban or if it already has. The ban ruling isn't binary, and the agency can also consider a limited ban, such as on one version of an iPhone, and not another — like a ban on iPhones with Intel modems versus Qualcomm ones.
Qualcomm claimed Apple was infringing on six of its patents relating to carrier aggregation, graphics processing, and signal amplification, in a complaint that was introduced to the USITC in 2017. The company ultimately pulled back three of the complaints, and one on battery charge preservation technology was viewed as infringed by Judge Pender.
The review order isn't routine, nor it is unprecedented. According to the USITC, about 60 percent of initial rulings are reviewed by a full panel of judges. Statistics for an overturn of a previous ruling are not available, but nearly every time a matter involving Apple has been reviewed by a panel of judges at the USITC — notably three times during the Apple versus Samsung skirmish — the iPhone maker has come out ahead.
The two patents that Judge Pender ruled as not violated in the first of two ITC complaints filed in the Apple versus Qualcomm skirmish will not be reviewed. A ruling on the matter is due by February 19, and is subject to appeal.
The entire ITC saga is part and parcel of Apple and Qualcomm's larger modem chip battle. Apple first filed a $1 billion lawsuit against Qualcomm in January 2017, arguing that Qualcomm was withholding money as retaliation for cooperation with antitrust investigations.
In September, Qualcomm accused Apple of delivering trade secrets to Intel to improve the performance of modems.
An August settlement over similar matters saw Qualcomm pay $93 million in fines to Taiwan and promise to invest $700 million in the country over five years.
The USITC complaint isn't the only one before the U.S. Government, A U.S. Federal Trade Commission lawsuit was filed before Apple's, and a decisive ruling was issued in November when District Judge Lucy Koh issued a preliminary ruling against Qualcomm, calling on it to license technology to rivals like Intel.
To put pressure on Qualcomm, Apple has been directing its manufacturers to withhold royalty payments, potentially reportedly in excess of $7 billion.
Qualcomm's CEO has been saying for six months that the modem chip saga will conclude soon. It isn't clear how accurate that assessment is, with a source within Apple saying that there have been no meaningful conversations between the two companies in months.
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24 Comments
While this particular hearing doesn't involve F/RAND pledged patents, of significant interest still and not yet reported at any of the tech blogs is this statement from US Assistant Attorney General Makan Delrahim this past week in a speech at the Advanced Patent Law Institute:
"I would like to announce here today, in the interest of clarity and predictability of the laws, and among the patent law community with whom we share the goal of incentivizing innovation: The Antitrust Division is hereby withdrawing its assent to the 2013 joint “Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments.”
The 2013 statement has not accurately conveyed our position about when and how patent holders should be able to exclude competitors from practicing their technologies. We will be engaging with the U.S.P.T.O. to draft a new joint statement that better provides clarity and predictability with respect to the balance of interests at stake when an SEP-holder seeks an injunctive order.
Any discussion regarding injunctive relief should include the recognition that in addition to patent holders being able to engage in patent “hold up,” patent implementers are also able to engage in “hold out” once the innovators have already sunk their investment into developing a valuable technology. Additionally, a balanced discussion should recognize that some standard-setting organizations may make it too easy for patent implementers to bargain collectively and achieve sub-optimal concessions from patent holders that undermine the incentive to innovate..."
"I believe our job is to serve American consumers by ensuring that fledgling ideas can become tomorrow’s life-changing or life-saving technologies. With that principle in mind, we are committed to ensuring that patent holders maintain their full constitutional right to seek an injunction against infringement, and that standard-setting organizations do not facilitate collusion of the sort that undermines innovative new technologies."
If you have a real interest in the ongoing patent licensing battleground how it affects standards essential IP and rights enforcement then the entire speech is worth reading. The rules and the monitoring of them may be changing from the standards setting organizations themselves all the way thru to the licensees. Maybe.
https://www.justice.gov/opa/speech/assistant-attorney-general-makan-delrahim-delivers-remarks-19th-annual-berkeley-stanford
I don't have the solution, but sure wish there was an answer to all of this tech patent wild-west antics that have been going on for a couple of decades now. I won't claim anyone as being a "patent troll", but the point of a patent is to protect ones invention or ideas in order to develop and profit from it. It is NOT intended to be a "I thought of it first but don't do anything with it so now you have to constantly prove you aren't getting near it". When we are to a point where a patent is limiting technology growth or stifling innovation because someone refuses to budge because they feel they can just have your entire product banned, we need reform.
I'm not saying strip patents from everyone, or anyone, but something has to be done. What that something is...I have no idea. just sick of hearing things like this, and yes I know Apple does it as well to others. But I don't view Apple as someone with tons of patents and no plans to ever develop or use them.
Is this limited to items shipping with iOS 11 as I have read is to be the case in China? Or is that not even true?
USITC is not like Chinese courts control by Chinese government who put import ban on older IOS iphones.. This is full fledged war between two companies and settlement is not near.