In 2017, Qualcomm filed two ITC complaints (requests for U.S. import bans) against Apple. In the earlier-filed case, a final determination by the Commission (the six-member decision-making body at the top of the U.S. trade agency with quasi-judicial authority) is due at 5 PM Eastern Time today, and the outcome of that one will be inconsequential as Apple has already worked around the sole remaining patent-in-suit. What's not so clear right now is whether Qualcomm may or may not gain leverage from the later-filed case. In that one, Administrative Law Judge (ALJ) MaryJoan McNamara just announced an initial determination ("initial" means the parties can seek a Commission review, and a final ruling is still four months off) according to which Apple is deemed to infringe one of three Qualcomm patents-in-suit (this post continues below the document):
19-03-26 ID on Violation by on Scribd
This preliminary decision disagrees with other findings in three respects:
The patent in question, U.S. Patent No. 8,063,674 on "multiple supply-voltage power-up/down detectors," was not deemed to be infringed by Apple in the opinion of the Office of Unfair Import Investigations (OUII, commonly referred to as "the ITC staff"), which participates in many investigations as a neutral third party. In my observation, decisions by ITC judges that run counter to staff recommendations are virtually certain to be reviewed and more likely than others to be reversed.
While ALJ McNamara recommends an import ban for the event her finding of a violation is upheld, the ITC staff originally also advised against a ban, for public interest reasons. The big public-interest issue here is that Qualcomm is specifically targeting Intel-powered iPhones, and Intel is its only competitor in the relevant market segment.
In January, the Patent Trial & Appeal Board (PTAB) of the United States Patent & Trademark Office instituted two inter partes reviews (IPR2018-01315 and IPR2018-01316) against this patent. Such petitions as Apple's are granted only if at least one challenged claim is likely to be found invalid.
Originally, Qualcomm asserted five patents in its second ITC complaint against Apple. It dropped two; the ALJ ruled on three, and one of them--the '674 patent--has now been deemed infringed (contrary to the ITC staff's findings) and valid (which is the less likely outcome of the pending inter partes reviews).
The parties and any other stakeholders will soon file another round of public-interest statements (not the first one between these parties). The Commission ruling coming down in the other case later today will provide valuable guidance in that regard.
Should the Commission affirm the ALJ's decision and adopt the recommendation to issue an import ban despite concerns over the anticompetitive implications of doing so, the President of the United States (who typically delegates this authority to the U.S. Trade Representative) could still veto an import ban. Also, there would be an appeal, and the Federal Circuit could stay enforcement for the duration of the appeal. And an antisuit injunction motion that a consumer class brought last year--but which was deemed premature at the time--could still succeed after the Presidential review.
Given all the question marks related to the existence of a workaround, to the July 26 Commission determination, to the Presidential review, to a potential appeal, and to a potential antisuit injunction, it's too early to tell what the fallout from this will be. Some of this will probably become clearer only when Apple files its next public-interest statement in this case, or even at a later stage.
Share with other professionals via LinkedIn:
