On October 15, 2013, the Supreme Court issued an order denying a petition for a writ of certiorari by Nokia Inc. and Nokia Corp. (collectively, “Nokia”) in Nokia Inc., et al. v. Int’l Trade Comm’n (2012-1352).

Nokia had appealed the Federal Circuit’s reversal of the International Trade Commission’s (the “Commission”) findings that Nokia did not infringe U.S. Patent Nos. 7,190,966 and 7,286,847 in Certain 3G Mobile Handsets and Components Thereof (Inv. No. 337-TA-613).  Specifically, the Federal Circuit held that Complainants InterDigital Communications, LLC and InterDigital Technology Corporation (collectively, “InterDigital”) satisfied the domestic industry requirement of Section 337 through licensing activities, and that the Commission erred in its construction of the claim terms “code” and “increased power level” which in turn led to erroneous determinations of non-infringement.  See our August 3, 2012 and January 14, 2013 posts for more details on the Federal Circuit’s rulings.

Nokia had petitioned for a writ of certiorari on the issues of (1) whether the domestic industry requirement is satisfied by “licensing alone” despite the absence of proof of “articles protected by the patent,” and (2) whether underlying factual determinations in a claim construction ruling should be subject to deferential review by the Federal Circuit. Notably, the Supreme Court declined to take up Nokia’s argument that allowing patentees to satisfy the domestic industry requirement by showing substantial investment in licensing alone – thereby giving non-practicing entities standing to file complaints with the Commission – has made the Commission “a particularly attractive forum for those with the least plausible need for the distinct protection of a specialized international trade tribunal.”

Chief Justice Roberts and Justice Breyer took no part in the denial of the petition.  The case will be remanded to the Commission for further proceedings.