Friday, March 1, 2013

December trial scheduled in InterDigital's latest ITC case against Samsung, Nokia, Huawei, ZTE

Administrative Law Judge Robert K. Rogers, Jr. yesterday set the procedural schedule for InterDigital's latest ITC case against Samsung, Nokia, Huawei and ZTE. The order entered the public electronic record today.

The evidentiary hearing (trial) will start on December 16, 2013. Judge Rogers plans to make his initial determination on or before February 4, 2014. The final ruling (most likely following a review by the Commission, the six-member decision-making body of the U.S. trade agency) will be due four months later, i.e., June 4, 2014. Should the ITC order an import ban, it will be subject to a Presidential review, which takes 60 days. An import ban could then take effect in August 2014, but given various developments in case law and the regulatory arena it's doubtful whether InterDigital's attempt to block the entry of non-licensed products into the U.S. market was the right strategy. InterDigital may at some point fid that it's more appropriate to sue for monetary compensation in federal court.

The scheduling order does not make reference to the FRAND licensing issues raised by all four defendants. Two of them, Nokia and Huawei, said in recently-filed statements on the public interest that InterDigital is pursuing a U.S. import ban against them in order to force them into worldwide license agreements, with royalty obligations even relating to countries in which InterDigital doesn't hold any standard-essential patents (SEPs) -- and possibly no patents at all.

A week ago, Huawei and ZTE brought a motion to stay the investigation pending a FRAND determination in federal court. Last week Samsung also asked for termination with respect to patents to which it was licensed at the time InterDigital purchased devices it claimed proved unlawful imports.

Judge Rogers's scheduling order cannot be interpreting as a negative assessment of the chances of those motions. The schedule had to be set at this point, and it can be modified anytime. Judge Rogers can form an opinion on these motions after full briefing. The next step is for InterDigital to respond. It will obviously oppose these motions.

Simultaneously with the ITC complaint InterDigital filed federal companion lawsuits against all four defendants in the District of Delaware, where Huawei and ZTE initiated a FRAND determination action through counterclaims. In my previous post I published InterDigital's opposition brief to Huawei and ZTE's motions to expedite the requested FRAND determination in Delaware. In that pleading InterDigital claimed that the proposed FTC-Google settlement concerning SEP assertions "is not a basis to adjudicate subsequent cases".

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