The ITC keeps receiving statements on public interest considerations relevant to its decisions on Motorola's complaints against Apple and Microsoft, and all of the statements submitted so far advocate that the trade agency refrain from exclusion orders in those cases.
Today Cisco Systems joined the Federal Trade Commission (FTC), HP, Nokia, the Business Software Alliance and other entities in asking the ITC to "decline to issue an order of exclusion" over standard-essential patents in the investigations of Motorola's complaints against Apple and Microsoft.
Like HP, Cisco is a major IT industry player that isn't involved with any of the current patent spats surrounding smartphones and tablet computers.
Cisco mentions its $5 billion annual R&D budget and its resulting patent portfolio that "the IEEE Spectrum's annual Patent Power Scorecard has consistently ranked number one in Communications and Internet Equpiment" (see page 15 of the most recent ranking).
Cisco firstly explains the [F]RAND bargain from its own perspective as a participant in standards development. Cisco also mentions that "over one hundred individual patents have been identified to the IEEE as essential to implement 802.11" (the WiFi, or WLAN, standard some of Motorola's patents-in-suit have also been declared essential to). The statement notes that "[e]ach standards-essential patent is, by definition, impossible to design around while maintaining compliance with the standard to which it is essential", so "[p]ermitting the owner of any one standards-essential that is subject to a licensing requirement to prevent the sale or importation of a product that practices hundreds or thousands of standards-essential patents necessarily creates a negotiating dynamic that leads implementers of standards to accept unfair and unreasonable licensing terms and compensates owners of standards-essential patents far beyond the value of their invention to a particular standard or product", an outcome that Cisco also refers to as an "unjust enrichment".
Coming from the assumption that Motorola "or a predecessor in interest" made a licensing commitment with respect to each of the SEPs-in-suit, Cisco says that "[b]eyond issues of patent validity and infringement, what remains to be resolved between Motorola Mobility and the infringers whose products it seeks to exclude is only the determination of a reasonable royalty". Cisco suggests that Motorola address this issue to "the federal district courts in which parallel litigation between Motorola Mobility and its accused infringers is already pending". While Cisco recognizes that an import ban is "the only remedy the ITC can provide", it notes that this "is one that Motorola Mobility denied itself by committing to license the various standards-essential patents it has asserted in the two investigations".
Furthermore, the Entertainment Software Association, whose membership "includes most of the major U.S. game publishers and the major video game console makers", raised specific concerns about a potential Xbox ban, which it says "would harm U.S. consumers, game publishers and the gaming ecosystem".
The ESA points that an Xbox import ban would impose harm on game publishers and consumers, wile Motorola Mobility "would suffer no equivalent harm, and any harm MMI would suffer can be remedied financially". I agree with the ESA on this. The Google subsidiary doesn't make any game consoles. It attacked the Xbox merely because it wanted to push for an import ban against some Microsoft products (in retaliation for Microsoft's patent assertions against Motorola's Android-based smartphones) and the Xbox turned out to be the only target (since Microsoft doesn't import computers or phones).
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