The patent tit-for-tat between Apple and Ericsson continues. One day after the United States International Trade Commission ("USITC" or just "ITC") instituted three investigations further to Ericsson v. Apple complaints (and Judge Gilstrap set a case schedule for the Apple v. Ericsson FRAND countersuit pending in Texas), the ITC on Friday gave notice (PDF) of the anticipated institution of investigation no. 337-TA-1302 over Certain cellular base station communication equipment, components thereof, and products containing same. In that case, Apple is seeking a U.S. import ban on Ericsson mobile infrastructure products, asserting three mmWave patents that have not been declared essential to any industry standard.
Like in the three Ericsson v. Apple cases (investigations no. 337-TA-1299, -1300, and -1301), the task of building a factual record on public-interest considerations has been delegated to the Administrative Law Judge (ALJ) to whom the case will be assigned (presumably on Monday).
Also yesterday, the ITC's Chief ALJ Clark S. Cheney assigned the investigation of Ericsson's third complaint against Apple to ALJ Cameron R. Elliot. While ALJ Elliot is relatively new to the ITC (he joined less than three years ago), he actually has an impressive intellectual property background, and studied physics before attending law school. His combination of technical and legal skills was apparently recognized by the DOJ, which hired him as a trial attorney on its IP team (Commercial Litigation Branch). Judge Elliot also practiced law at what was (until its orderly dissolution in 2010) "one of the oldest intellectual property boutique firms in the United States" according to IP Watchdog: Darby & Darby.
The next steps for the ITC related to the Ericsson-Apple 5G dispute are now the assignment of Apple's case to an ALJ, and the ALJs will shortly set their procedural schedules, presumably with target dates about 16-18 months off. The respondents will soon have to answer to the complaints. And I consider it likely that Apple will request the consolidation of two or three of the investigations of Ericsson's complaints into a single one, though Ericsson's cases are clearly distinct with respect to the technologies at issue and overlap only with respect to some (but not all) of the accused products.
The ITC is sometimes referred to as a "protectionist agency" (just one example: this Ropes & Gray podcast transcript). But that does not mean U.S. companies are favored. What a complainant does have to meet is a domestic industry requirement. It's all about protecting American jobs--and the iPhone is not made in the United States. It's designed and engineered there, for the most part at least, but not manufactured. A domestic industry can also consist in licensing activities an alternative to manufacturing. However, even in that regard Apple is not an ideal Section 337 complainant: everyone in the industry knows that Apple does not really engage in outbound licensing. Itdoes cross-license, from time to time, in order to bring down its royalty payments on the bottom line. Apple is not known for an mmWave patent licensing program in the United States, let's put it that way.
Apple's ITC complaint seeks to satisfy the technical prong of the domestic industry requirement by claiming with confidential claim charts) that various iPhones (from the iPhone 12 and 13 generations) "practice one or more claims of the Asserted Patents." For the economic prong of the domestic industry requirement, Apple's argument comes down to emplying engineers and other staff in America, plus having an ecosystem. Where Apple claims that it "supports more than 2.7 million jobs across the United States," it points to three types of job creation: direct employment; spending with suppliers (which Apple is known to squeeze really brutally) and manufacturers; and "developer jobs in the thriving iOS app economy." The third part is typical: developers are useful pawns in the chess games Apple plays, but Apple's treatment of iOS app developers is extremely controversial, and actually has been condemned as abusive by Capitol Hill lawmakers (who are working on the Open App Markets Act to right that wrong), the state AGs of 35 U.S. states, and even the Biden DOJ is supporting Epic Games against Apple.
Being an app developer myself, I wish Apple could just follow Microsoft's example, in which case Apple would be in a stronger position to take some credit for the creation of "developer jobs." There's an enormous asymmetry with Apple dictatorially imposing and enforcing its rules and developers being at Apple's mercy. As Horacio Gutierrez, testifying in the United States Senate for Spotify at the time, accurately said, developers have to succeed despite Apple's abusive practices.
When Apple talks about its impact on the U.S. economy, it obviously doesn't mention the enormous damage its ATT policy has done to companies like Meta (Facebook) and Snapchat (look at what happened to those companies' stock prices when the effects of ATT began to show), and countless smaller and lesser-known ones because of the power and money grab that is its prextual privacy campaign. Apple is increasingly isolated and has made itself so many enemies. I'm not denying the great and positive things Apple used to do, and may still do going forward. With respect to its bottom-line impact on the economy at large, Apple is not a blessing, but--with its current practices--closer to a curse.
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