On January 23 the top-level decision-making body of the United States International Trade Commission (USITC, or just ITC) gave notice of a remand and a review of a preliminary ruling that found Samsung to infringe four Apple patents (in October). This results in a delay of the U.S. import ban Apple will win if the final ruling finds at least one violation (which is very likely in light of the preliminary finding of four). Without the remand, the final decision would have come down on January 23. Late on Tuesday, Administrative Law Judge Thomas B. Pender entered a scheduling order. The new target date for the final decision is August 1, 2013, requiring the judge to make his remand initial determination (RID) no later than April 1, 2013.
Extensions are always possible. In this case, since the remand issues are very limited in scope, I wouldn't be surprised if the RID came down a week or two ahead of schedule.
Most preliminary rulings by the ITC's ALJs are subsequently reivewed, at least in part, by the Commission. Remands of certain issues to the judge are less frequent. And in this case, the procedural situation is particularly complex because the Commission decided to remand select issues to the judge but will, after the judge makes his next preliminary ruling, review the judge's findings in their entirety, not just the parts relevant on remand. Theoretically the Commission could already do some work now on the parts that weren't remanded, but due to its heavy caseload this may not be an option.
So who stands most to gain or lose from this remand+review decision? The review is more of an opportunity for Samsung because Apple had prevailed on four patents. The more you win at one stage, the more you stand to lose at the next stage. But the limited remand is an opportunity only for Apple. As I explained right after the remand order came down, the questions raised in connection with the remand allow Apple to broaden its preliminary win with respect to two patents on which it already had prevailed but not to the extent it hoped. So on or before April 1, there will be good news for Apple or no news, but the remand doesn't have scope for good news for Samsung. Subsequently, the review is finally going to start, and while Apple could also prevail on a couple more patents at that stage, it's more likely that the Commission will narrow the scope of Apple's October 2012 preliminary win.
If the final ruling came down on August 1, 2013 and if the determination was an import ban, there would be a 60-day Presidential review period. The White House usually doesn't veto such decisions. An import ban (possibly coming with a cease-and-desist order and a requirement to post bonds relating to goods imported during the review period) could then take affect at the beginning of October. It's too early to assess the business impact. The tricky part in this case is that Samsung won favorable rulings with respect to various "designarounds", but no details of those designarounds were discoverable in the public version (and presumably not even in the unredacted version) of the initial determination. Samsung somehow shipped those designarounds, but it's unclear whether Samsung's business would be adversely affected by making the same technical changes to its flagship Galaxy products. Depending on the scope of a patent infringement ruling, designarounds can go unnoticed by end users (because they provide materially the same functionality but have non-infringing inner workings) or they can come with visible degradations of product quality (particularly of the user experience).
Apple did not address the question of whether the alleged designarounds still infringe but argued that the designarounds should not even have been adjudicated because a complainant should be the master of his infringement assertions. Judge Pender ruled on them anyway because he wanted to avoid a situation in which Apple would later try to enforce an import ban against modified products, creating uncertainty in the market and potentially causing harm to Samsung's U.S. business. Both parties have legitimate interests and the designarounds are going to be an interesting issue when the Commission finally conducts its review.
In a parallel case Samsung is seeking a U.S. import ban against Apple. In fact, Samsung's complaint was filed about a week before Apple's. The target date for a final ruling on that complaint is presently March 7, 2013. The most problematic part of that case -- and the one other industry players are most concerned about -- relates to FRAND-pledged standard-essential patents.
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