1053

Final Determination: Redesigned products and adverse inferences allowed in Two-Way Radio Equipment

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The ITC issued a notice on November 16 of the Commission’s final determination in Two-Way Radio Equipment (Inv. 1053).  The final determination found that Hytera violated Section 337 by importing walkie-talkies that infringe patents held by Motorola.  

Motorola's patent complaint at the ITC was part of a broader campaign accusing Hytera of trade secret theft by hiring three former Motorola engineers to copy Motorola's technology.  Those employees were called to testify during the ITC investigation, but refused to answer any questions—invoking their fifth amendment right against self-incrimination.  The behavior prompted the ALJ to apply an adverse inference against Hytera on the question of induced infringement, a decision that was upheld by the Commission on review.

Despite the finding of violation, Hytera issued a press release declaring the ITC outcome as a victory.  That's because the final determination also reversed some important findings from the initial determination that originally went against Hytera.  In particular, the Commission found that Hytera's redesigned products do no infringe any of the patents in suit.  This is very good news for Hytera.  Because an exclusion order will only apply to older models, they can continue to sell the newer products in the United States.

Motorola is still pursuing both patent and trade secret claims against Hytera in district court.

Photo credit: Craig A. Rodway