Context: Litigation between Ericsson and Lenovo is pending in multiple jurisdictions such as Brazil, Colombia, the UK, U.S. district court and the U.S. International Trade Commission (USITC, or just ITC), a trade agency with quasi-judicial powers. Last month, the United States Court of Appeals for the Federal Circuit revived a Lenovo bid for an antisuit injunction against Ericsson’s patent enforcement in Latin America (October 24, 2024 ip fray article).
What’s new: Yesterday, the ITC’s Administrative Law Judge (ALJ) Cameron Elliot handed down his initial determination in one of three investigations instigated by Ericsson. In that one, which involves non-standard-essential patents (non-SEPs), two patents went to trial, and ALJ Elliot held the asserted claims of either one invalid. One of the patents was, however, deemed infringed.
Direct impact: The initial determination is subject to review by the Commission, the presently four-member panel at the top of the trade agency. It is a given that Ericsson will petition for review, particularly with respect to the validity of the patent that the ALJ deemed infringed. Chances are that Lenovo will file a conditional petition for review, asking the Commission to look at the infringement finding in the event the relevant patent is revived. Whatever the Commission decides can be appealed to the Federal Circuit.
Wider ramifications: Initial determinations in other cases involving these parties are coming up soon, as several trials have been held this year. Generally, the ITC is considered a difficult forum in which to prevail, but the prize is a U.S. import ban that gives patentees considerable leverage depending on whether the underlying patents can be worked around (such as in the Apple Watch case (March 12, 2024 ip fray article)) or not. The most important one of Ericsson’s ITC disputes with Lenovo involved four SEPs that the ITC staff deems valid and infringed (September 18, 2024 ip fray article).
Here’s ALJ Elliot’s notice of the initial determination, which says that the full version (which spans 107 pages) will be made available in a redacted form at a later stage:
Lenovo is known for defending itself vigorously against patent assertions. It leaves no stone unturned (see, e.g., this October 20, 2024 ip fray article) even if means giving novel and aggressive legal theories a try. For instance, Lenovo wants an interim-license declaration in the UK, but its dispute with Ericsson, where only Lenovo wants a UK FRAND determination, is different from Xiaomi’s patent spat with Panasonic, where both parties committed to take a license on terms to be determined in the UK (October 3, 2024 ip fray article).
Last month, Lenovo reached an agreement with InterDigital to drop their litigations and have the licensing dispute resolved through binding arbitration (October 9, 2024 ip fray article).
On the eve of the ITC ruling, Lenovo reported positive developments for its PC business and raised its projections (November 14, 2024 Bloomberg article).