Administrative Law Judge E. James Gildea just issued his preliminary ruling on Samsung's ITC complaint against Apple. At this stage of the investigation, four Samsung patents, including a couple of allegedly standard-essential ones, are at issue. Samsung had dropped one of its five patents-in-suit, a kind of streamlining that is expected in ITC investigations and also performed by Apple in its own offensive cases.
Judge Gildea identified no violation with respect to any of the asserted claims of the four patents:
claims 75-76 and 82-84 of U.S. Patent No. 7,706,348 on an "apparatus and method for encoding/decoding transport format combination indicator in CDMA mobile communication system" (an allegedly UMTS-essential patent)
claims 9-16 of U.S. Patent No. 7,486,644 on a "method and apparatus for transmitting and receiving data with high reliability in a mobile communication system supporting packet data transmission" (allegedly UMTS-essential)
claims 5, 9-10 and 13 of U.S. Patent No. 6,771,980 on a "method for dialing in a smart phone"
claims 1-5 of U.S. Patent No. 7,450,114 on "user interface systems and methods for manipulating and viewing digital documents"
Judge Gildea furthermore concluded that no domestic industry exists for any of the four patents. The domestic industry requirement is indispensable for ITC complainants -- without it, there is no way to win an import ban.
This initial determination is subject to a review by the six-member Commission, the top-level decision-making body of the ITC. Samsung will undoubtedly request a thorough review. Modifications of initial determinations are not uncommon, but in this case, Samsung will face at least two hurdles with respect to each patent: a finding of no violation means that Apple prevailed on at least one of its affirmative defenses against liability (non-infringement, invalidity, patent exhaustion, or more than one defense at the same time), and Samsung would additionally have to get the denial of a domestic industry overturned. In many cases, non-infringement and no-domestic-industry findings are based on the same claim construction, so certain modifications of how the patents are interpreted could result in a reversal of a violation and a domestic industry finding at the same time. Still, this is not going to be easy for Samsung to win. The final decision is due in four months and can be appealed to the United States Court of Appeals for the Federal Circuit, to which several high-profile smartphone ITC investigations have already been appealed.
Samsung was hoping (and despite today's setback will continue to hope) to gain some leverage over Apple from an ITC import ban. And in light of the recent California trial, Samsung needs leverage sooner rather than later.
Today's initial determination concludes a week that worked out very well for Apple on the Android patent litigation front. Yesterday, Apple won a German injunction against Motorola (which the Google subsidiary will be able to work around but only to the detriment of the user experience) and received an indication earlier today that an ongoing investigation of Samsung's enforcement of standard-essential patents by the European Commission, the top EU antitrust regulator, could influence or even determine the outcome of a couple of German lawsuits involving wireless SEPs.
For a reminder, here's a list of more than 50 worldwide litigations these two companies brought against each other in ten countries on four continents.
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