Context: Two weeks ago, Administrative Law Judge (ALJ) MaryJoan McNamara of the United States International Trade Commission (USITC, or just ITC) handed down her initial determination according to which Lenovo infringed four valid standard-essential patents (SEPs) asserted by Ericsson (December 18, 2024 ip fray article). While ITC judges normally make their recommendations on remedy (the U.S. trade agency’s sole independent remedy is an import ban) on the same day on which they render their final initial determinations (FIDs) (not truly final as there are still a few steps left), and often even in the very same document, that was not the case in this investigation (no. 337-TA-1375). The formal 14-day deadline would have been today.
What’s new: Yesterday, ALJ McNamara entered a procedural order according to which she “extend[s] the issuance date of the [recommended determination on remedy] to February 21, 2025 because of trial and other deadlines that are intervening.” If she exhausts that deadline, the remedy recommendatoin would come an incredible 66 days after the FID, as opposed to the 14 days envisioned by the statute. In the meantime, the process will move forward with respect to the parties’ argument over Lenovo’s petition for review of the FID, without the parties being able to take a position on the recommended remedy.
Direct impact: Theoretically, that procedural order is subject to Commission review. The Commission is the top-level decision-making body of the ITC. In this outlier case, it is not inconceivable that the Commission could be institutionally concerned about the enormous delay. If the Commission set a different deadline, ALJ McNamara might have to postpone deadlines in some other proceedings.
Wider ramifications: The outcome is still more likely than not to simply be a limited exclusion order (i.e., U.S. import ban). The delay could be caseload-related without meaning anything for whether it is a difficult decision to make. Still, other SEP holders contemplating ITC complaints will be watching this and wondering what it means for their own cases if the ALJ finds it difficult to recommend a U.S. import ban in a case where the Office of Unfair Import Investigations (OUII, commonly referred to as the “ITC Staff”) does not see any FRAND issues (September 18, 2024 ip fray article).
It is always difficult to draw conclusions, or to engage in conjecture, based on procedural delays of court decisions (or of other procedural milestones). That does not make it wrong. One just has to be aware of the fact that quite often a delay is just a delay and doesn’t mean anything for the substance of what will happen.
A perfectly plausible inference in this case is that ALJ McNamara realizes that writing a remedy recommendation in this case, with four SEPs having been deemed infringed and Lenovo (as usual) having raised a variety of novel arguments, would be somewhat time-consuming.
Still, even in another currently pending SEP matter involving Nokia and Amazon (December 21, 2024 ip fray article), a different ALJ (Cameron Elliot) rendered a recommendation on remedy simultaneously with his FID:
The ITC as an institution will now have to decide what message it wants to send out to SEP holders.
Meanwhile, Lenovo has (as no one would have expected otherwise) petitioned for Commission review of the FID. The ITC Staff has also made a filing and recommends that the Commission affirm the bottom line (four valid and infringed SEPs), but with a modification of the reasoning with respect to one of the four patents. For one claim limitation of the ‘893 patent, ALJ McNamaras FID says that it was undisputedly practiced by the accused products and the domestic industry products. The ITC Staff points to the subsequent removal of that one from the list of undisputed issues, but finds plenty of support in the record for the same ultimate outcome.