The International Trade Commission published a notice on Friday that an initial determination has been issued in Mobile Electronic Devices (Inv. 1065).  The administrative law judge overseeing that investigation found that Apple’s iPhone infringes one of the numerous patents asserted by Qualcomm, but the judge recommended against issuing an exclusion order on public interest grounds.

This outcome is not a complete surprise, as public interest arguments were the subject of extensive briefing and testimony during the investigation.  Qualcomm sought to exclude only iPhones using Intel modem processors, and Apple claimed that such an outcome would enable Qualcomm to monopolize the market, stifling 5G innovation and U.S. competitiveness.  The factors laid in the ITC’s statute include the effect of an exclusion order on competitive conditions in the U.S. economy and on U.S. consumers.

The Commission will review the judge’s findings and make its own determination in the next few months.  To make things more complicated, there is a second ITC investigation—Mobile Electronic Devices (Inv. 1093)—featuring different patents but the same parties, the same products, and the same public interest arguments.  That investigation is being conducted by a different judge who isn’t expected to issue a determination until January. 

As noted in a previous post, the last time the Commission relied on Section 337’s public interest test to deny an exclusion order was 24 years ago. But they did rely on public interest factors to limit the scope of an exclusion order in 2007 and may opt to do something similar in this case.

Controversy over the ITC’s role in the patent system and evolution in the law of patent remedies have prompted the ITC to take a closer look at public interest arguments in recent years.  Applying the public interest test more vigorously in cases with significant consequences for third parties is one way the ITC could address these concerns without new legislation.

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