Wednesday, July 17, 2013

ITC May Address Infringement of Standard-Essential Patent Subject to FRAND Commitment

The Commission rejected respondent's argument that complainant was not entitled to a cease and desist order for its infringed patent for encoding signals in a cellular telephone network because of complainant's FRAND commitments. "[Respondent] fails to cite any precedent for its proposition that the Commission cannot address infringement of standard-essential patents other than in the exceptional scenarios such as where a potential licensee has refused to pay a royalty after a U.S. court has determined that royalty to be FRAND, or where no U.S. court has jurisdiction over the potential licensee in order to set a FRAND rate. [Respondent's] regime would have the Commission be a forum of last resort, when all other remedies have failed. But such an approach is directly contrary to the Commission's enabling statute. . . ."

Electronic Devices, Including Wireless Communication Devices, Portable Music and Data Processing Devices, and Tablet Computers, 337-TA-794 (ITC July 5, 2013, Order) (Trade Commission, J.).

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