Latest Developments On Injunctive Relief For Infringement Of FRAND Encumbered SEPs

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This memorandum is directed to the current state of the case law in the U.S. International Trade Commission (ITC or “Commission”), the U.S. Federal Trade Commission (FTC) and the U.S. District Courts for parties seeking to obtain injunctive relief for FRAND-encumbered standard-essential patents (SEPs). (The term “FRAND” is further defined herein and refers to a fair, reasonable and non-discriminatory license commitment.) The memorandum also addresses steps an SEP holder may consider before seeking an exclusionary remedy in the ITC.

EXECUTIVE SUMMARY -

A. Current State Of The Case Law -

• ITC: By Letter of August 3, 2013, U.S. Trade Representative (USTR) Michael Froman, acting by delegation of authority from the President, notified the Commission of the President’s decision to disapprove the Commission’s June 4, 2013 determination to issue an exclusion order and cease and desist order on a FRAND patent in Certain Electronic Devices, Including Wireless Communication Devices, Portable Music And Data Processing Devices, And Tablet Computers, Investigation No. 337-TA-794 (“the 794 investigation”)—the first time the Commission had ever issued exclusionary relief on a FRAND-encumbered SEP. This is also the first time since 1987 that a President has disapproved a Commission exclusion order for policy reasons. In this instance, the substantial concerns, which the August 3, 2013 USTR letter states “I strongly share,” involve the potential harms that can result from owners of SEPs engaging in “patent hold-up.”

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