Monday, June 25, 2012

ITC postpones decision on review of preliminary Google-Microsoft ruling by one week

The ITC just announced a thorough review of a preliminary ruling on Google subsidiary Motorola Mobility's complaint against Apple. It also had a target date today for a decision on whether (and, if so, to what extent) to review a preliminary ruling on Motorola's complaint against Microsoft. But that decision was postponed by one week. It is now scheduled to be announced in one week from today, i.e., on Monday, July 2, 2012.

In light of the focus of the questions the Commission's review notice raised in the Apple case, I have no doubt FRAND and injunctive relief issues will also play a major role in next week's notice. But the question of whether Microsoft waived its FRAND defense will hardly come up: Microsoft's FRAND defense was discussed in detail in the initial determination, which stated that "Motorola was not interested in good-faith negotiations and in extending a [F]RAND license" to Microsoft.

Also, Microsoft had filed a lawsuit to enforce Motorola's FRAND licensing obligations even before Motorola brought this ITC complaint. That federal lawsuit will go to trial in November.

On Friday, Microsoft filed a motion for a partial termination of the investigation. The content of the motion (85 pages including exhibits) is not publicly accessible, but chances are that it also has to do with FRAND. And today, Microsoft filed a request for judicial notice of the FRAND part of Judge Posner's Apple v. Motorola decision, which I said before is the best FRAND ruling I've ever seen.

In connection with the Motorola's two ITC complaints, lawmakers, the antitrust enforcers of the FTC and various major industry players and industry groups also submitted statements on public interest considerations in connection with the ITC investigations of Motorola's complaints against Apple and Microsoft:

The ITC's announcement next week will be very interesting, I'm sure.

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