Yesterday, Administrative Law Judge (ALJ) Thomas B. Pender of the United States International Trade Commission (USITC, or just ITC) made an initial determination on remand ("remand ID") in the investigation of Apple's complaint against Samsung. At this point the document has to be redacted so as not to disclose confidential business information, and this process typically takes a few weeks. The ITC's electronic document system does, however, reveal that the remand ID was filed (click on the image to enlarge or read the text below the image):
Doc Type: ID/RD - Final on Violation
Security: Confidential
Official Receive Date: 03/26/2013 04:20 PM
Filed By: Thomas B. Pender
Firm/Org: USITCOn Behalf Of: Administrative Law Judge
The filing system also indicates that the document is 15 pages long. It addresses only some narrow issues. Here's a recap of the procedural context:
Judge Pender had handed down his initial determination (the original one, prior to remand) in October 2012 and held Samsung to infringe four Apple patents, but also blessed workarounds with respect to three utility patents (the fourth patent found infringed was a design patent, and those can always be designed around). The ITC staff (Office of Unfair Import Investigations), which participates in some investigations as a third party whose recommendations are not binding on the judges and the Commission, supported Judge Pender's findings.
On January 23, 2013 the Commission, the six-member decision-making body at the top of the U.S. trade agency, ordered a remand of certain issues to Judge Pender and also said it would review the initial determination in its entirety. I said at the time that the remand part of this decision was only an opportunity for Apple to broaden its preliminary win with respect to two patents, but a full review is more of an opportunity for Samsung to achieve a better outcome than the four infringement findings of the original initial determination.
Shortly after the remand and review notice, Judge Pender set the target date for the further process and said his remand determination would issue no later than April 1, 2013. He actually filed it six calendar days ahead of schedule. This fact does not move up the target date for the final Commission decision, which is still August 1, 2013.
Now that Judge Pender has made this remand initial determination on the narrow issues the Commission asked him to revisit, the parties can petition for review of that preliminary ruling (they already requested that the Commission review the original initial determination), and unless the Commission now decides to adopt Judge Pender's recommendations as the final ruling, the parties will then get to submit briefing on the issues key to the review. In such a multi-patent case involving so many different issues it would be unusual for the Commission not to review the preliminary rulings -- the original ID and the supplemental remand ID -- at all. In other words, this investigation is now entering the most important phase.
In December a federal judge denied Apple a permanent injunction against Samsung despite multiple findings of infringement at a trial held last summer in the Northern District of California. Apple is appealing that denial, but its nearest-term opportunity to obtain injunctive relief against Samsung in the U.S. is to win an import ban at the end of this ITC investigation. While Samsung has shipped unknown quantities (which could also be very small) of products implementing the workarounds approved by Judge Pender, it's unclear what the commercial impact would be if Samsung had to implement those workarounds in all of its flagship Galaxy products in order to be able to keep importing them into the United States. The details of those workarounds have not been discussed yet in publicly-accessible pleadings or rulings. Sometimes patents can be worked around in ways that end users don't even notice (because only some of the inner workings of a product are modified) or that don't make a major difference, but some workarounds do come with noticeable degradations of the user experience. If a judge approves a workaround, the decision is based exclusively on whether the workaround falls outside the legal scope of the relevant patent, and unrelated to commercial considerations.
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