ITC postpones ruling on Microsoft, Motorola dispute

Microsoft has cited in its defense Judge Richard Posner's ruling in a separate case in Illinois

The U.S. International Trade Commission on Monday extended by a week the deadline to decide whether to review an earlier determination against Microsoft's Xbox in a patent dispute with Motorola Mobility.

ITC administrative law judge David Shaw has recommended a ban on Xbox consoles in the U.S. The commission was earlier scheduled to decide on Monday whether to review Shaw's determination.

Earlier in the day, Microsoft brought in as "supplemental, newly- issued authority" a ruling last week in an Illinois federal court by Judge Richard Posner, and said it supports its position that public interest weighs against the issuance of an exclusion order in the investigation with respect to patents asserted by Motorola that are standards-essential, and that Motorola contractually committed to license to any and all adopters of the relevant standards on free, reasonable and non­discriminatory (FRAND) terms.

Judge Posner ruled last week in a separate case in the U.S. District Court for the Northern District of Illinois that Apple cannot seek an injunction against Motorola in its smartphone patents lawsuit, throwing out the case "with prejudice," meaning that neither side can refile, although the ruling could be appealed. Posner, an appellate court judge, was designated to hear the claim.

Microsoft is citing Judge Posner's comments on Motorola's attempt to obtain an injunction against Apple related to patents that were licensed on FRAND terms.

"By committing to license its patents on FRAND terms, Motorola committed to license the [patent] to anyone willing to pay a FRAND royalty and thus implicitly acknowledged that a royalty is adequate compensation for a license to use that patent," the Judge wrote. "How could it do otherwise? How could it be permitted to enjoin Apple from using an invention that it contends Apple must use if it wants to make a cell phone with UMTS telecommunications capability -- without which it would not be a cell phone."

Judge Posner also cited and adopted the position taken by the U.S. Federal Trade Commission in its statement in the public interest filed earlier this month before the ITC, that injunctions or exclusion orders on standard-essential patents disserve the public interest, Microsoft said.

FTC said that ITC's issuance of an exclusion or cease and desist order in matters involving implementation of standards-essential patents, that were committed to be licensed on FRAND terms, has the potential to cause substantial harm to U.S. competition, consumers and innovation.
 FTC made the submission in the context of the ITC investigation into Motorola Mobility's charges of patent infringement against Apple and Microsoft. A number of U.S. Congressmen and tech companies took similar stands.

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John Ribeiro

IDG News Service
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