There's a new development in the dispute between Microsoft and certain governmental entities relating to the (non-)enforcement of an ITC import ban against Google subsidiary Motorola Mobility's Android-based devices over a meeting scheduler feature. The United States International Trade Commission (USITC, or just ITC), which issued the relevant exclusion order in May 2012, says that Microsoft's lawsuit in the United States District Court for the District of Columbia against the Department of Homeland Security and other entities and certain officials should be dismissed without prejudice (which would enable Microsoft to refile it) in favor of the U.S. trade agency's proposed alternative, an ITC enforcement proceeding in which the substantive issues (such as whether certain Android apps do or do not fall within the scope of the ITC's exclusion order) should be resolved.
This is all about procedures -- and those procedures have important business implications. No one would doubt the ITC's ability to build an evidentiary record, hold an evidentiary hearing and issue an enforcement ruling on a matter like this. But this can easily take a year or more. That's why, considering the fast pace at which the wireless devices market moves, businesses like Microsoft obviously seek to avoid such delay where it doesn't appear necessary.
The way I read Microsoft's complaint and subsequent filings in this case, the company was perfectly aware from the outset that the legal standard for winning this case -- and especially a preliminary injunction -- against governmental agencies is high. the standard is "arbitrary and capricious". Without taking a firm position on this particular case (I don't have all of the relevant information), I do want to point out one problem that the ITC cannot solve and another type of issue that prevailing patent holders should not have to put before the ITC:
Accountability is key. In a case in which a governmental agency steps over the line in extreme ways that give an advantage to one party and disadvantage another one, there must be a way to have a court of law -- and not just another governmental agency, even if it has some limited quasi-judicial authority -- look at this and tell the government to comply.
Some Washington lobbyists misunderstood my blog post on the original complaint. It was a nonjudgmental report for the most part. I did, however, find some allegations in Microsoft's complaint that I found at least disconcerting because it appeared (and still appears) to me that Customs and Border Protection, which is merely tasked with enforcement of exclusion orders, engaged in some backroom dealmaking with Google that went too far for my taste. Let's look at it this way: if a court sends someone to jail without parole, the detention officers shouldn't negotiate a probation deal with him. Their task is to enforce, not to issue or modify rulings. Admittedly, detention is a much simpler issue than the question of whether products infringe patents. Still, enforcement must be limited to enforcement.
There are undoubtedly many cases in which the enforcement of an exclusion order raises valid questions that only the ITC itself is equipped to resolve. But where there aren't any valid questions left and the "arbitrary and capricious" standard is accordingly met, there must be a shortcut for a prevailing patentee. The "arbitrary and capricious" standard provides only a narrow corridor: the vast majority of enforcement issues must go back to the ITC, but there must also be room for extreme cases in which -- because the ruling is clear -- the enforcers are found to have failed to do their job and are told to do it. That's what this dispute will help clarify, no matter the outcome.
Technically, the ITC's motion is a motion for leave to submit an amicus curiae brief. No party objects to the ITC's participation, so let's assume that the brief, which the Commission attached to its motion, will soon be deemed submitted. The brief supports the Government's motion to dismiss Microsoft's lawsuit, but it does not take a position on the merits (and not even on whether the United States District Court for the District of Columbia has subject matter jurisdiction over this case): it merely argues that the ITC has primary jurisdiction over this question, and that the issue should be resolved in an ITC enforcement proceeding. The ITC proposes a dismissal without prejudice, which would enable Microsoft to still pursue its claims later, if necessary. For the reasons I explained above, the ITC's proposal comes with a justice-delayed-is-justice-denied problem for Microsoft, and an ITC enforcement proceeding is not a substitute for a court review of certain governmental agencies' actions.
I did not previously report on the Government's motion to dismiss but always intended to mention it in my next post (i.e., this post) on this case. The reason I didn't do a separate post on that motion is that Google, which is intervening in this case, previously (last month) brought a motion to dismiss, and the Government's motion was pretty consistent with Google's. I have uploaded the Government's motion to Scribd, and here's the ITC's amicus brief (as part of a motion for leave):
13-09-23 Motion by USITC to Submit Amicus Brief to DC District Court by Florian Mueller
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