Judge David Shaw’s recommendation to the ITC Commission that the import of 4gb and 250gb Xbox slim models to the US should be banned is unlikely to be enforced, says patent expert Florian Mueller.
The judge made the decision to recommend an import ban to the ITC Commission yesterday, ruling in a case between Microsoft and the Google-owned Motorolla which has the Redmond manufacturer defending itself against four counts of patent infringement.
Motorola, on the other hand, stands accused of not offering what are seen as essential patents for use by other companies under fair terms, violating the FRAND agreement by asking for an excessive share of profits.
Whilst Shaw has effectively ruled against Microsoft here, the actual outcome of the case rests heavily on two parallel cases in Europe which will establish whether Motorolla has operated within the terms of FRAND policy.
Nonetheless, even this judgment will be evaluated in the light of its potential effects on other businesses and the public.
“I’ve never seen an ITC judge make any other recommendation than an exclusion order if his initial determination is that there is a violation,” says Mueller. “This is the normal course of business.
“Unlike judges at courts, ITC judges don’t make the decisions: they merely recommend them. Their recommendations are very frequently not adopted by the Commission, the six-member decision-making body at the top of the ITC. Not only does the Commission overrule those judges with respect to the actual violations but the Commission also has the final say on remedies.”
Mueller, who runs tech patent blog Foss Patents, also said that developers and publishers are likely to petition the US administration to overturn the ruling.
“Even if the Commission agreed with the judge on some or all of the violations, there are public interest considerations for which an exclusion order should not be entered, or at least not before or during the Christmas Selling Season. The more Xbox games makers write to the ITC about this, the less likely an import ban will be.
“If many games makes write to the ITC, then I doubt that there will be ever be an actual Xbox import ban. What’s more likely to happen is that a federal court in Microsoft’s home state of Washington will set the terms of a license agreement that Motorola and Microsoft will have to enter into. As a result, Microsoft will be licensed and the Xbox won’t be an infringing product.”