ITC Docket Update

National Security

The ITC investigation into Mobile Electronic Devices and Radio Frequency and Processing Components Thereof is part of a long and complex dispute between American tech giants Qualcomm and Apple.  The parties' pre-hearing briefs were made public this week and include arguments related to whether an exclusion order would be contrary to the public interest.  A major part of Apple's defense in the investigation is that Qualcomm is trying to use Section 337 to eliminate its only competitor from the market.  

Here's how Apple explains the situation in their brief:

Qualcomm seeks to exclude only those iPhones "that do not incorporate a Qualcomm brand baseband processor modem" . . . —i.e., those supplied by Intel, Qualcomm's only competitor in the open market for premium baseband chipsets.  Qualcomm's requested remedy would seriously injure the public interest by recreating a Qualcomm monopoly in this critical cellular technology.

One of the reasons Apple offers for why decreased competition would harm the public interest is that it would "stifle 5G innovation and harm national security."

U.S. leadership in 5G is critical to the public interest both because of the national security imperative that the United States lead the world in 5G technology and because of the critical role that a robust, competitive domestic 5G industry plays to ensure U.S. economic competitiveness.
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In support of its argument that national security requires the U.S. to lead in the development of 5G technology, Apple points to the federal government's recent intervention preventing Singapore-based Broadcom from purchasing Qualcomm over the concern, voiced by the Committee on Foreign Investment in the United States, that "given well-known U.S. national security concerns about Huawei and other Chinese telecommunications companies, a shift to Chinese dominance in 5G would have substantial negative national security consequences for the United States."

This case is certainly unusual, but if Apple's arguments are successful, it will be worth watching to see if other respondents begin to highlight "national security" and economic competitiveness in their public interest arguments.

Early Disposition Request

Respondent Emerson Electric has asked the ITC to designate Wireless Mesh Networking Products (still pending institution) for early disposition on the question of domestic industry.  Emerson opens its request by calling out SIPCO as a patent troll.

Complainant SIPCO LLC ("SIPCO") is an unabashed Non-Practicing Entity ("NPE").  This action is simply an attempt by SIPCO to use the threat of exclusionary relief to extract a settlement from Emerson after the majority of the patent claims previously asserted by SIPCO (and its sister company IP CO, LLC) against Emerson have been found unpatentable by the Patent Trial and Appeal Board.  However, SIPCO has misjudged its ability to meet all of the requirements of litigating in this forum.

If the ITC accepts Emerson's request, it will establish an expedited trial schedule to enable the issuance of an initial determination on the single issue of domestic industry within 100 days.  

"Approved Grille Design"

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Indian automaker Mahindra has responded to the complaint filed in early August claiming trademark and trade dress infringement related to the FCA's Jeep brand.  According to Mahindra, the ITC should refuse to institute the investigation (Motorized Vehicles) at all because the two companies already worked this out years ago when FCA agreed to allow the design it's now challenging at the ITC.  From Mahindra's Statement on the Public Interest:

Fiat’s request to ban the importation of parts used to manufacture its ROXOR off-road-only vehicles in the U.S. is frivolous. Fiat (then named Chrysler Group, LLC) expressly agreed in 2009 that the grille design used on the ROXOR does not violate any JEEP-related intellectual property rights, and further expressly agreed it would not assert any intellectual property rights against any vehicle using the grille design. This approved grille is included on the ROXOR specifically to ensure that no intellectual property rights were violated in the development of the ROXOR.

Mahindra is using this agreement to argue that the ITC should not institute the investigation, that the ITC should provide for early disposition of the investigation on this issue, and/or that the agreement renders an exclusion order contrary to the public interest. 

For its part, FCA has responded by claiming that the design used by Mahindra is not the same as the "approved grille design"—a question best settled through the regular course of the investigation.