Tuesday, May 28, 2013

Preliminary ITC ruling in Apple's favor against Samsung will be reviewed thoroughly

Last October an Administrative Law Judge (ALJ) of the United States International Trade Commission (USITC, or just ITC) issued a preliminary ruling holding Samsung to have infringed four Apple patents (three utility patents, one design patent). In January the Commission, the six-member decision-making body at the top of the U.S. trade agency, ordered two things: a complete review of the original findings and a limited remand with respect to additional infringements of two of the patents already found infringed. In April that limited remand resulted in a finding of additional violations by Android's text selection feature. Both Apple and Samsung requested a review of the remand initial determination.

Today the Commission gave noticeof its decision to review -- in addition to the original preliminary ruling, which it already said in January it would review in its entirety -- the remand ruling as well.

The final Commission ruling is scheduled for August 1, 2013. In today's review notice the Commission asked the parties ten questions. Apple and Samsung are supposed to respond to those, but not to raise other issues in their briefings. The ten questions involve three patents, two of which (the '949 touchscreen heuristics patent and the RE'922 translucent images patent) Samsung was found to infringe and the third one of which (the '697 plug detection patent) is a patent on which Apple would like to additionally prevail. The review questions don't address two of the four patents the ALJ found Samsung to infringe: the '501 plug detection patent and the D'678 smartphone design patent. While this increases the likelihood of affirmance of the ALJ's findings with respect to the '501 and D'678 patents, the outcome is by no means certain. The Commission said it would review the rulings in its entirety, and it may have identified issues on which it's comfortable deciding without further briefing.

The review notice also doesn't mention the controversial question of whether the ITC has jurisdiction to rule on designarounds Samsung presented during the course of the investigation.

I will report on this review in more detail when public redacted versions of the parties' forthcoming briefs become available.

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