The ITC has now released the public version of its decision to terminate the LSI-Realtek investigation without addressing RAND issues, which we discussed in our March 5, 2014 post. The public version does not provide any more insight into the decision not to address the standard essential patent RAND issues beyond it being moot given no violation found:
8. RAND and Equitable Defenses Because we conclude that there are multiple grounds for determining no violation of section 337 with respect to the ’958 patent, the Commission does not reach any RAND or equitable defenses associated with the ’958 patent. Therefore, the Commission takes no position on the ALJ’s determinations with respect to the respondents’ RAND defenses and equitable defenses. [Op. at 33-34]
So the RAND issues in this investigation are moot unless somehow revived from any appeal to the Federal Circuit.
Of course, the RAND issues are alive and well in the parallel district court litigation before Judge Whyte where the jury decided a RAND royalty rate and awarded damages for LSI breaching the RAND obligation (see our February 27, 2014 post) and Judge Whyte will be ruling on Realtek’s motion to permanently enjoin LSI from seeking an exclusion order/injunction on its RAND-encumbered patents (see our March 13, 2014 post and March 21, 2014 post). The appeal from the district court case, however, may go to the Ninth Circuit, rather than the Federal Circuit, based on this being a contract dispute (not patent infringement suit) and the prior appeal in this case to the Ninth Circuit of Judge Whyte’s preliminary injunction (see our March 21, 2014 post).