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Qualcomm could still win an iPhone ban in the US at the hands of the USITC

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.

iPhone X, at the heart of Qualcomm's complaints

iPhone X, at the heart of Qualcomm's complaints


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.