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December 12, 2006

ITC Relief

The International Trade Commission (ITC) has become the preferred backdoor to get an injunction, now that the Supreme Court put glue on the hinges of the judicial front door in its eBay decision.

For example, Qualcomm and Broadcom have been scrapping in court and before the ITC. Broadcom accused Qualcomm of patent infringement and antitrust, while Qualcomm accused Broadcom of patent infringement and trade secret theft. Broadcom had brought three patents before the ITC, two of which were rejected. But one stuck. On Friday of last week, the ITC commission found Qualcomm infringing. The ITC's sole remedy is injunctive relief.

Stefani Shanberg, a partner at Perkins Coie observed, "Right now the Commission still hasn't determined what remedy to put on Qualcomm for the violations. The ITC only has two things it can do - grant an exclusion order, which affects the importation of products into the U.S., or issue a cease or desist, which will affect existing products."

To the court, the ITC hardly counts. As Shanberg put it, the district court would mostly consider it as just one data point.

Peter Zura has an excellent entry today on patent enforcement via the ITC.

Posted by Patent Hawk at December 12, 2006 4:35 PM | Litigation