Wednesday, June 15, 2022

ITC staff sides with Ericsson on claim construction in standard-essential patent case against Apple

Given the IP-savvy audience of this blog, I don't need to stress the pivotal role of claim construction in patent infringement cases. With respect to claim construction, Ericsson is on the winning track against Apple in its standard-essential patent (SEP) case before the United States International Trade Commission (USITC, or just ITC). A document just appeared on the public docket of ITC investigation no. 337-TA-1299 that shows the Office of Unfair Import Investigations (OUII; commonly referred to as "the ITC staff") concurs with Ericsson, and conversely disagrees with Apple, on several disputed claim terms:

Administrative Law Judge (ALJ) David P. Shaw is an experienced patent judge. He's going to form his own opinion. But what the ITC staff says is an indication to everyone--including, but not limited to, the ALJ presiding over an investigation or litigation watchers like me--as to what a neutral third party might reasonably conclude. Therefore, it appears fairly possible that Apple needs to rely on somewhat far-fetched claim constructions in order to avoid infringement findings over those SEPs. Of course, in order to prove a violation, Ericsson also needs to overcome any invalidity contentions, and has to establish the technical prong of the domestic industry requirement (over the economic prong Ericsson and Apple have agreed not to challenge each other). The technical prong of the domestic industry requirement is, however, rather unlikely to represent a problem for Ericsson in a case over cellular SEPs.

We're far from a final decision, but it is meaningful progress at this procedural stage. Were this a sports event, you'd see the betting odds being adjusted in Ericsson's favor--not massively, but quite significantly.

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