Both Microsoft and Motorola have asked the ITC to review an initial determination (made in December 2011) that held MMI to infringe one of Microsoft's seven patents asserted at that stage of the investigation:
- I discussed Microsoft's petition in a recent post. Microsoft would like the ITC to take a closer look at what it describes as "Motorola's wide-scale infringement of Microsoft patents", hoping to prevail on up to five additional patents. By not requesting a review of the initial determination with respect to the '910 patent, Microsoft has effectively dropped that patent from the investigation (but can stil assert it elsewhere).
Meanwhile, a public redacted version of Motorola's petition for review has also become available. Motorola would like the Commission, the six-member decision-making body at the top of the ITC, to reverse the finding of a violation. MMI does not challenge the finding of an infringement of the '566 patent (according to the initial determination, it never defended itself against the infringement contentions) but it claims that the patent is invalid and that there isn't a domestic industry for it.
Additionally, Motorola made contingent requests, bringing invalidity contentions with respect to each patent and asking the ITC to take those into account in each case in which a finding of no violation will be reviewed.
I have put together a table that shows the different findings (validity, infringement, domestic industry) of the initial determination for each patent and states, in brackets, the stock ticker symbol of the party that requested a review relating to any given finding:
| Patent | Deemed | Deemed | Domestic |
| '566 | Yes | Yes | Yes |
| '054 | Yes | No | No |
| '352 | No | No | No |
| '133 | Yes | No | Yes |
| '910 | No | No | Yes |
| '376 | Yes | No | No |
| '762 | Yes | No | No |
In most of the cases in which there is a petition, Microsoft asks for a No to be turned into a Yes, and Motorola for a Yes to be turned into a No. There are, however, two special cases:
With respect to the '352 patent, Microsoft asks for a review and Motorola made a contingent petition to make an additional infringement contention succeed. It only takes one reason for the patent to be invalid, but Motorola wants to increase its chances of the patent still being held invalid even if the basis on which the initial determination deemed the patent invalid was overturned.
Motorola did the same with respect to the '910 patent. However, since Microsoft dropped the '910 patent by not asking for a review of any issues concerning that patent, Motorola's contingent petition relating to the validity of that patent is moot.
The Commission will soon decide on a review of the initial determination. It could also decide to adopt the initial determination as the final decision, but in light of what I've seen in other recent investigations and the many issues that both parties have raised, it's far more likely that a review will take place.
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