The Commission, the six-member decision-making body at the top of the ITC, just gave notice that it has determined to "review in part" the final initial determination of an Administrative Law Judge on Microsoft's complaint against Motorola Mobility.
Microsoft originally asserted nine patents and, in a streamlining effort that is common and expected in such ITC investigations, dropped two of them. It didn't petition for a review of another patent that was not deemed violated, but the Commission can define the scope of its review beyond a complainant's petition, and according to the notice, seven patents are currently being asserted in this investigation.
These are the parts of the initial determination ("ID") that the Commission has determined to review (the text is a direct quote from the notice, but I reformatted the numbered items for web publishing purposes):
the ID's determination regarding the economic prong of the domestic industry requirement with respect to all of the presently asserted patents in this investigation, i.e., the '352 patent, the '762 patent, the '910 patent; the '376 patent, the '133 patent, the '054 patent, and the '566 patent;
the ID's determination regarding the technical prong of the domestic industry requirement with respect to all of the presently asserted patents;
the ID's anticipation and obviousness determinations with
respect to the '566 patent;
the ID's infringement determination with respect to the '352 patent; and
the ID's analysis of induced infringement with respect to all of the presently asserted patents.
For a point of reference, this recent blog post contains a table that shows which issues Microsoft's and Motorola's petitions raised. Among the two, they also raised questions concerning all seven patents.
The review notice asks some general questions relating to all patents and some specific ones relating to the '566 patent (the one based on which the initial determination identified a violation by Motorola's Android-based devices; MMI doesn't dispute infringement but still does contest the validity of that patent) and the '352 patent, which is one of Microsoft's FAT (File Allocation Table) patents.
In addition, the Commission expressed an interest in submissions regarding remedies and public interest considerations relating to a possible exclusion order.
Given the broad and general nature of most of the Commission's questions that could broaden or narrow the scope of the violation identified, it's hard to predict the outcome based on this notice. There clearly are two patents that get particular attention, as I mentioned.
The parties have to file their submissions on or before March 19, and their replies (to each other's submission) on or before March 27. Public redacted versions are made available, but always with delays (which can vary greatly).
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