Apple is widely expected to appeal Posner's dismissal, and the dispute with Motorola is also pending before the
Wayland, without naming individual cases, said that the DoJ's antitrust division is keeping an eye on a number
of standard-essential patent disputes pending before the ITC in which mobile firms are seeking an exclusion order
against a competitor's product.
"We have continued closely to monitor the use of FRAND-encumbered standard-essential patents in the wireless
device industry to ensure that they are not used to stifle competition and innovation in this important industry,"
The ITC is obligated to consider public-interest concerns in its evaluation of those cases, and factors such as
consumer harm could be enough to sway the panel against banning imports of a popular device.
Both witnesses seemed alarmed at the mounting requests for exclusion orders among litigants that would cut off
imports. Neither suggested a blanket rule prohibiting such relief -- after all, in certain cases where an
infringing party operates outside the jurisdiction of U.S. courts, for example, an ITC exclusion order might be an
appropriate remedy. But they argued that those cases are the exception, and that companies that agree to license
their standard-essential patents have an obligation to negotiate in good faith and steer clear of the extortionate
activity they are often accused of.
"Once you make a RAND commitment, I mean, you are saying there's a commitment to license on RAND terms," Ramirez
Kenneth Corbin is a Washington, D.C.-based writer who covers government and regulatory issues for
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