Today, the U.S. International Trade Commission issued its delayed decision on whether it would review ALJ David P. Shaw’s Initial Determination finding no violation of Section 337 in In the Matter of Certain Wireless Devices with 3G Capabilities and Components Thereof, Inv. No. 337-TA-800.  (For some background, see our previous post on the ALJ’s Initial Determination.)  Here’s the Notice, indicating that the Commission will review the ALJ’s Initial Determination in its entirety:

[337-TA-800 Notice of Commission Decision to Review Initial Determination] 

You may recall that despite the fact that the ALJ found no violation of Section 337, both InterDigital and the Respondents (Nokia, Huawei, and ZTE) filed petitions for review on certain issues.  And because the Commission is going to review the ID in its entirety, it could potentially reverse the ALJ’s findings on many different issues, ranging from infringement and invalidity to FRAND defenses and domestic industry issues.  The end result could be a finding of a violation of Section 337 on one or more of the asserted patents, or it might be that the Commission comes to many of the same conclusions as ALJ Shaw.

Despite all the attention surrounding SEPs at the ITC, though, the Commission has not called for additional briefing on FRAND issues.  In fact, the Commission expressly stated that it is not interested in receiving submissions that address the public interest or the appropriate remedy in this case (some submissions addressing this have actually already been filed).

What the Commission seems to be most interested in, however, is the issue of domestic industry.  The ALJ had determined that InterDigital satisfied this ITC statutory requirement through its investments in licensing its patents to third parties, but the Respondents want the ITC to reverse this finding.  The ITC has requested submissions from the parties addressing this issue in particular:

Please discuss, in light of the statutory language, legislative history, the Commission’s prior decisions, and relevant court decisions, including InterDigital Commc’ns, LLC v. Int’l Trade Comm’n, 690 F.3d 1318 (Fed. Cir. 2012), whether establishing a domestic industry based on licensing under 19 U.S.C. § 1337(a)(3)(C) requires proof of “articles protected by the patent” (i.e., a technical prong).  If so, please identify and describe the evidence in the record that establishes articles protected by the asserted patents.

(Incidentally, the Federal Circuit case referenced by the Commission (see our post on that decision here) is currently the subject of a petition for certiorari to the U.S. Supreme Court.)

The current target date for completion of the investigation — the date by which the ITC will issue its Final Determination — is October 28, 2013.  Despite the fact that the Commission did not order additional briefing on FRAND issues, this will be the first post-USTR veto opportunity for the ITC to address how FRAND might affect exclusionary relief.  Stay tuned.