The International Trade Commission issued the public version of its opinion in Inv. No. 337-868, finding no violation by either Nokia or ZTE and terminating the investigation in its entirety. On review, the Commission neither affirmed nor rejected ALJ Essex’s FRAND analysis, which criticized respondents who had not actively sought a license from InterDigitial yet raised SSO-related affirmative defenses.

As you may recall from our July 2, 2014 post, ALJ Essex issued a Final Initial Determination following a February 2014 evidentiary hearing, finding the accused products did not infringe InterDigital’s asserted patents, the domestic industry requirement had not been met, only one claim (claim 16 of U.S. Patent No. 7,941,151) was invalid as indefinite, and that respondents did not demonstrate InterDigital had violated any FRAND obligation. The Final Initial Determination also included a lengthy FRAND analysis, which was highly critical of respondents that assert FRAND defenses without having first availed themselves of SSO procedures for resolving situations where licenses are not available.

Respondents petitioned the ITC to review, inter alia, ALJ Essex’s FRAND analysis. Respondents argued that under a proper FRAND analysis, the asserted patents should have been found unenforceable under the doctrines of equitable estoppel, unclean hands, and patent misuse. As previewed in the ITC’s August 14 notice, the Commission took no position on the FRAND issues raised by the respondents, finding it more efficient to decide those issues, if at all, following an appeal of a related decision:

Decision as to those issues would require further proceedings, and potentially additional factfinding. The Commission has decided that, on balance, the added delay, burdens, and expenses that would be incurred by the parties and the Commission in resolving these issues are unjustified here given their non-dispositive nature, especially in view of the existence of other pending proceedings regarding the asserted patents and patents closely related to them.  In addition, the Commission finds that it is in the interest of the efficient use of administrative, judicial, and private resources for the domestic industry and FRAND issues to be decided, if at  all, subsequent to final disposition of the pending appeal in InterDigital Communications LLC v. ITC, No. 2014-1176 (Fed. Cir.), which involves many of the same parties and issues with regard to related patents.