Import Ban Only Remedy Available from ITC

By Robert J. Mullins  |  Posted 2012-08-20 Print this article Print

Companies that patent a particular technology standard apply to standards bodies like the Internet Engineering Task Force (IETF) or the Institute of Electrical and Electronics Engineers (IEEE) to get their technology accepted as part of the standard. In the event their technology is adopted as the standard, they in turn agree to license their technology to others in a "fair, reasonable and non-discriminatory" way, said Love.

Given that the patents in the Motorola vs. Apple case are "standard-essential" patents, it's unlikely that the ITC would ban the import of Apple products into the U.S., Love said. He noted that U.S. District Court in Chicago, Judge Richard Posner threw out another Apple vs. Motorola patent infringement case in June because the patents at issue were standard-essential. That ruling is on appeal.

Federal courts and the ITC both handle patent infringement cases, but have different options for how they can operate, he said. A U.S. District Court can impose monetary damages on the infringing company. But the ITC can only grant or deny a request for an "exclusion," that would keep an offending product from being imported into the U.S.

"That's the only remedy you can get. You can't get monetary compensation [from the ITC]," Love said.

What's interesting about the Motorola vs. Apple and the Apple vs. Samsung cases, which Love refers to as the "smartphone wars," is that they are being argued at all.

Because patent law can be murky, the conventional wisdom has been that a company doesn't easily sue rivals for infringement because it could result in the defendant making similar allegations against the plaintiff.

"If you're going to start picking a fight, it's going to result in mutually-assured destruction," he said, referring to a Cold War concept that the U.S. and Soviet Union would never actually fire nuclear missiles at each other because both countries had more than enough nuclear warheads to destroy each other and even the entire world many times over.

In the Apple v. Samsung case, wrapping up in San Jose's federal court, presiding U.S. District Judge Lucy Koh publicly urged both sides to settle before jury deliberations begin after evidence of infringement was presented by each company against the other.

Attorneys for both sides in the Apple vs. Samsung case are scheduled to make closing arguments to the jury Aug. 21 and deliberations are expected to begin the next day.

Editor's Note: This story was updated to correct the name of the U.S. district court judge who threw out an earlier patent infringement case between Apple and Google. 


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