3G Mobile Handsets: ITC to Review FRAND Defense

The ITC will review, in part, ALJ Essex’s final initial determination on remand (“Remand ID”) in Certain 3G Mobile Handsets and Components Thereof, Inv. No. 337-TA-613, particularly focusing on the FRAND defense issues. See June 25, 2015 Notice of Commission Decision to Review in Part a Final Initial Determination on Remand (“Notice”).

In the Remand ID, the ALJ found infringement of InterDigital’s patents and rejected Microsoft and Nokia’s FRAND defense.  The ALJ made the following determinations about the FRAND defense:

  1. Because Microsoft and Nokia argued that the InterDigital patents did not practice the standard, InterDigital had no duty to license the patents on FRAND terms. Remand ID at 36.
  2. In a declaration submitted to the European Telecommunications Standards Institute (“ETSI”), InterDigital did not admit that its patents were standards-essential, but only that they “may be or may become essential.” Id.
  3. Because InterDigital offered licenses on its patents, and because no party could know what would constitute a FRAND licensing rate, the licensing rates offered by InterDigital could not be considered in bad faith. Id. at 42.
  4. There was no proof of hold-up by InterDigital, but there was evidence of reverse hold-up by Nokia and Microsoft, who refused to negotiate or take a license. Id. at 54, 66.The Commission showed particular interest in the FRAND defense. Of the twelve questions the Commission asked the parties to brief, nine relate to the FRAND defense. Notice at 4-5. Initial briefing is due July 10, and replies are due July 20. Id. at 6.

For an in-depth review of the Remand ID, see our prior post here.

The Commission showed particular interest in the FRAND defense.  Of the twelve questions the Commission asked the parties to brief, nine relate to the FRAND defense.  Notice at 4-5.  Initial briefing is due July 10, and replies are due July 20.  Id. at 6.