On June 26, 2014, ALJ Essex issued an ID in Certain Wireless Devices With 3G And/Or 4G Capabilities,Inv. No. 337-TA-868, finding no violation of Section 337 based on, inter alia, noninfringement of asserted patents declared essential to the 3G and 4G LTE standards created by the European Telecommunications Institute (“ETSI”). Nevertheless, should the Commission find that Respondents infringe the asserted patents and that they are essential to the 3G and 4G LTE standards, ALJ found that there was No FRAND Obligation (ID pages 108-171) and issued a Recommended Determination (ID pages 171 – 183) of an LEO with a carve out for noninfringing products and a six month delay to mitigate the effect on the public. ALJ concluded that ETSI rules “do not bar any remedy as beyond the reach of the parties” and the Complainant was not bound by any obligations under its IPR Licensing Declaration because Respondents did not meet their obligations under the ETSI rules. ALJ further found that an exclusionary remedy would be appropriate where “Respondents are free to avoid their own obligations under the agreements, can manufacture potentially infringing goods without license or consequence, can seek to invalidate the IPR in question, and yet are free from the risk of a remedy under 19 USC 1337”, and denied Respondents’ affirmative defenses of equitable estoppel, unclean hands and patent misuse as moot. OUII supported ALJ’s opinion on FRAND. Respondents opposed, asserting that ALJ erred as a matter of law that conditions can occur that would vitiate Complainant’s FRAND obligations, and that ALJ made incorrect findings regarding such conditions and never made any findings on whether Complainant’s license offers to Respondents were FRAND or Respondents counteroffers were FRAND. Because the Commission affirmed ALJ’s finding of no violation, the Commission stated that it would not take a position on FRAND and that such issues would be decided, if at all, subsequent to pending appeal InterDigital v. ITC,No. 2014-1176 (oral argument scheduled November 7, 2014).
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Commission takes no position on FRAND issues in 868 investigation
USA October 30 2014
King & Spalding LLP - Kevin M Dinan , Gilbert B. Kaplan, Thomas C Lundin Jr. (Tom), Tony V Pezzano , Jeffrey M. Telep and Taryn Koball Williams
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