On Tuesday morning my time, only a couple of hours after the U.S. government shutdown, I wrote an overview of how this would impact certain ongoing smartphone patent disputes. Among other things, I mentioned that the shutdown could affect certain governmental entities's efforts to defend themselves against a Microsoft lawsuit against the Department of Homeland Security, Bureau of Customs and Border Protection and other governmental defendants over the alleged arbitrary and capricious non-enforcement of an import ban Microsoft won last year from the ITC against Motorola's Android-based devices implementing a particular feature. This was foreseeable, and today the Government indeed filed a motion to stay all deadlines in that case until "Congress has appropriated funds for the DoJ" and its "attorneys are permitted to resume their usual civil litigation functions" (this post continues below the document):
Google (Motorola), which is an intervenor in this case, obviously has no problem with a stay of this case. But Microsoft wants the import ban it won last year to be enforced without limitations, transitional periods or whatever else Google may have persuaded U.S. customs of. In an amicus curiae brief urging dismissal (without prejudice) of Microsoft's complaint, the ITC argued that Microsoft should simply request an ITC enforcement proceeding against Motorola, but Microsoft, in its opposition to the Government's motion to dismiss (which I uploaded to Scribd earlier this week), says that this would cause too much delay.
Under the circumstances of the shutdown, neither an ITC enforcement proceeding nor a federal lawsuit with respect to which the Government temporarily lacks the funds to defend itself can go ahead. Justice delayed...
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