Edible Apple

The ITC last Friday issued a preliminary ruling regarding Apple’s allegations that certain Motorola products infringe upon 3 of Apple’s patents.

On this date, the ALJ issued an initial determination on violation of Section 337 and recommended determination on remedy and bond in the above-referenced investigation. It is
held that no violation of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1337,
has occurred in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain mobile devices and related software by reason of infringement of one or more of Claims 1, 2, 10, 11, 24-26, and 29 U.S. Patent No. 7,812,828 (“the ‘828 Patent”), claims 1-7 and 10 of U.S. Patent No. 7,663,607 (“the ‘607 Patent”), and claims 1, 3, and 5 ofthe U.S. Patent No. 5,379,430 (“the ‘430 Patent”).

The ruling obviously doesn’t bode well for Apple, though it still needs to be approved by the full ITC panel which is comprised of 6 members.

Florian Mueller astutely points out that the ITC, by and large, doesn’t seem to be the venue by which any of the big players will be able to secure serious product bans – though Apple did win a ban against infringing HTC products a few weeks back.

So for more impactful results, companies like Apple will have to wait for their federal lawsuits to go to trial. Of course by then, many of the products at issue may be bit players on the marketplace.

Litigants will need to win federal lawsuits, and all of the major Android-related disputes except for Oracle’s lawsuit against Google include international litigations, particularly (but not only) in Germany. The outcome of those large disputes is likely going to depend on a combination of rulings in multiple jurisdictions, even though most of the major players probably thought at the outset that the ITC, which has tighter schedules than most United States district courts, was going to be the strategically most important venue.