Sunday, April 15, 2012

ITC judge pushes back Samsung case against Apple by six weeks

After extending the target dates for the investigations of two Microsoft complaints (one against Motorola Mobility, the other against Barnes & Noble), the ITC (or more precisely, an Administrative Law Judge, but Commission approval is, though formally required, highly likely) has postponed the target date for a decision on Samsung's June 2011 ITC complaint against Apple by six weeks. The final decision is now due on January 14, 2013 (instead of December 3, 2012), and the ALJ's initial determination (preliminary ruling) on September 14 instead of August 3.

In this case, the postponement was expected. Back when the original target date was set, the ALJ already his "particularly crowded" docket and indicated that "[f]urther adjustments may need to be made to the target date in 2012".

The circumstance that now led the ALJ to modify the timeline is that, under the original schedule, he would have only "a few weeks to draft a final initial determination after final briefing is filed" following the hearing, which is and remains scheduled for June.

He also noted "the size and complexity of this [i]nvestigation, as well as its unusually adversarial nature". I am keeping an eye on that investigation to the extent that information enters the public record. There are various discovery fights there, but that's the normal course of business. There are FRAND issues relating to several of Samsung's patents, and I've previously expressed my opinion that standard-essential patents shouldn't be asserted in ITC complaints. I don't know what else the ALJ means by the "unusually adversarial nature" of the investigation. Maybe some more information will come to light over time.

For Samsung, this postponement means that it loses a potential technical advantage. Samsung was slightly faster (by about a week) to file its own ITC complaint against Apple than Apple was with its ITC complaint against Samsung. When the two companies were fighting over schedules in the Northern District of California, Samsung boasted with the fact that it won the race to the ITC and essentially said that this was Apple's problem and not a reason for the district court to turn itself into a rocket docket. The fact that Samsung was slightly faster was not even the primary tactical advantage Samsung had at the ITC: the original target date for its own complaint was more ambitious (16 months after the official start of the investigation), while Apple's case ghas a target date of February 5, 2013. Now, with the postponement, what used to be a difference of more than two months is down to approximately three weeks. But there can still be more delays at all stages of both investigations.

Generally speaking, the drop-out rate of patent infringement claims at the ITC is so high that certain U.S. federal districts and international jurisdictions (particularly Germany) now play a more important role in various parties' plans.

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