Monday, July 15, 2013

Microsoft Sues U.S. Customs and Homeland Security to Enforce ITC Exclusion Order

Microsoft filed suit against the Department of Homeland Security and the Bureau of Customs and Border Protection (“CBP”), to enforce an ITC exclusion order prohibiting importation of certain mobile phones with calendar synchronization functionality. “This action seeks to compel Defendants to comply with their mandatory statutory obligation to exclude from import articles that the [ITC] has determined violate a domestic producer's patent rights under federal law. . . . [I]n series of recent actions, CBP has allowed the importation of infringing devices based on claims that Motorola has made on an ex parte basis, and that CBP has accepted without providing Microsoft notice of those claims, much less an opportunity to address them. Most egregiously, CBP has allowed Motorola to re-litigate- in secret- issues that Motorola lost before the Commission, and has granted Motorola precisely the relief that the Commission expressly refused to grant after full, fair, and open litigation. . . . CBP has repeatedly allowed Motorola to evade the [ITC’s] Exclusion Order based on secret presentations that CBP has refused to share with Microsoft. Microsoft has repeatedly explained that CBP's stated reasons for not enforcing the Exclusion Order are legally mistaken, only to confront new theories and claims that CBP has adopted (apparently after further secret discussions) to justify its continuing refusal to enforce the Exclusion Order.”

Microsoft Corporation v. US Department of Homeland Security et al, 1-13-cv-01063 (DCD July 12, 2013, Order) ().

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