Yesterday, Chief Administrative Law Judge Clark S. Cheney of the United States International Trade Commission (USITC, or just ITC) gave notice that the investigation of Ericsson's complaint over Apple's alleged infringement of cellular standard-essential patents (SEPs)--with Ericsson seeking a limited exclusion order against certain Apple gadgets and Apple arguing that an import ban over SEPs gives rise to an "unclean hands" defense--has been reassigned to Administrative Law Judge Bryan F. Moore. Previously, ALJ David P. Shaw was presiding over the investigation.
The apparent reason for which this reassignment occurred is that ALJ Moore started in his new role last month, and the ITC is now assigning a mix of new and previously-pending matters to him.
When I saw the date of his appointment, I was--only for a moment--puzzled. It didn't make sense to me that the most important one of those Ericsson-Apple ITC cases (Ericsson also brought two additional complaints over non-SEPs, and Apple filed one non-SEP complaint relating to mmWave technology) should be handled by a "novice." But ALJ Moore is the opposite of a novice. His background is truly impressive:
He already worked for the ITC from 2005 to 2012 ad an investigative attorney in the OFfice of Unfair Import Investigations (OUII, frequently referred to as "the [ITC] Staff"). In that role, he participated in numerous investigations of patent infringement complaints.
He spent the ten years after his first role with the ITC at the USPTO as an Administrative Patent Judge (APJ), serving on the Patent Trial and Appeal Board (PTAB), where he heard appeals of decisions by patent examiners and presided over inter-partes review (IPR) proceedings.
Earlier on in his career, he was a lawyer in private practice and "prosecuted patent applications before the USPTO related to electronic communications systems and financial services inventions."
In addition to a J.D. from Georgetown, he holds an electrical engineering degree from Stanford (that's as good as it gets).
While he presumably didn't have to deal with SEP licensing issues over the course of the last ten years, this case is now a splendid opportunity for him to hear FRAND arguments from two world-class litigants. It will be interesting to see how this investigation unfolds under his auspices. For now, all I can say is that I'm profoundly impressed with his background. Some ALJs came to the ITC from the social security system or the military (two other major fields in which you find ALJs) and quickly learned about patent law. But given the high percentage of patent infringement cases among Section 337 complaints, it's a smart decision to appoint judges with a strong patent law background.
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