ITC judge recommends partial iPhone ban in Qualcomm patent fight
A U.S. ITC judge has made the recommendation that Qualcomm is granted its request for an import bank against Apple in the ongoing legal wrangling between the two tech giants, with the ban potentially preventing some models of iPhone from being imported into the United States.

Administrative Law Judge MaryJoan McNamara working for the U.S. International Trade Commission made her decision on Tuesday based on the recent lawsuit ruling where Apple was found to have infringed on Qualcomm's technology patents. As Apple infringed on the patent, the judge said it would be acceptable for Qualcomm to be granted its import ban request.
A "limited exclusion order" and a cease and desist order is recommended against Apple, the filing reveals. A bond is not being recommended during the review period by the judge, as Qualcomm's products "do not directly compete" with the iPhones using the infringing components.
Specifically, the recommendation is being made on just one of three patents claimed by Qualcomm to have been infringed, while the other two were not deemed to have been infringed.
Reuters reports the judge's statement was a recommendation and not binding at this point, as it still needs to be reviewed by the ITC. While it is possible some iPhone models could be banned from being imported and sold in the United States, it is also possible that Qualcomm's request could also be denied by the ITC following review.
Neither Apple nor Qualcomm have commented on the initial determination so far. It also isn't clear which models will be impacted by any ban, which is still months or over a year away, given ITC review timetables.
The recommendation arrives ahead of another ITC decision anticipated to be made later in the day, again relating to a request from Qualcomm to ban some iPhone sales.
A ban in the United States would be an issue for Apple, while it works to avoid similar patent-infringement issues in other countries. Earlier this year in Germany, Apple was subjected to a ban on the iPhone 7 and iPhone 8 following another Qualcomm legal battle, but Apple avoided the issue by using Qualcomm modems instead of those produced by Intel that caused the ban in the first place.
Apple subsidiaries in China were the victims of two preliminary injunctions in December, effectively banning the import and sale of iPhones running iOS 11 or older versions, again instigated by Qualcomm. The subsidiaries received criticism for seemingly failing to respect the decision of the court, by permitting the sale of models from the iPhone 6S running to the iPhone X.

Administrative Law Judge MaryJoan McNamara working for the U.S. International Trade Commission made her decision on Tuesday based on the recent lawsuit ruling where Apple was found to have infringed on Qualcomm's technology patents. As Apple infringed on the patent, the judge said it would be acceptable for Qualcomm to be granted its import ban request.
A "limited exclusion order" and a cease and desist order is recommended against Apple, the filing reveals. A bond is not being recommended during the review period by the judge, as Qualcomm's products "do not directly compete" with the iPhones using the infringing components.
Specifically, the recommendation is being made on just one of three patents claimed by Qualcomm to have been infringed, while the other two were not deemed to have been infringed.
Reuters reports the judge's statement was a recommendation and not binding at this point, as it still needs to be reviewed by the ITC. While it is possible some iPhone models could be banned from being imported and sold in the United States, it is also possible that Qualcomm's request could also be denied by the ITC following review.
Neither Apple nor Qualcomm have commented on the initial determination so far. It also isn't clear which models will be impacted by any ban, which is still months or over a year away, given ITC review timetables.
The recommendation arrives ahead of another ITC decision anticipated to be made later in the day, again relating to a request from Qualcomm to ban some iPhone sales.
A ban in the United States would be an issue for Apple, while it works to avoid similar patent-infringement issues in other countries. Earlier this year in Germany, Apple was subjected to a ban on the iPhone 7 and iPhone 8 following another Qualcomm legal battle, but Apple avoided the issue by using Qualcomm modems instead of those produced by Intel that caused the ban in the first place.
Apple subsidiaries in China were the victims of two preliminary injunctions in December, effectively banning the import and sale of iPhones running iOS 11 or older versions, again instigated by Qualcomm. The subsidiaries received criticism for seemingly failing to respect the decision of the court, by permitting the sale of models from the iPhone 6S running to the iPhone X.
Comments
To be clear, the patents at issue in this USITC case - to include the one patent which ALJ McNamara determined that Apple infringed - are not the same patents that were at issue in the recent case in the Southern District of California in which the jury found that Apple infringed three of Qualcomm's patents. Those patents from that SD of CA case were involved in a different USITC case, one initially heard by ALJ Pender.
That's right. In these kinds of USITC cases, the ALJ makes initial determinations with regard to infringement. But the ALJ only makes recommendations with regard to remedy (i.e. exclusion orders and cease and desist orders). The Commission can either review or not review the ALJ's determinations with regard to infringement. But when it comes to remedy, if there is a final determination of infringement, the Commission has to make those decisions itself. The ALJ's recommendation isn't binding on the Commission.
Then there are, of course, further steps in the process during which the Commission's remedy decisions are reviewed.
By won, I mean that the ALJ made a final initial determination that Apple infringed one of the asserted claims of the '674 patent. The ALJ also determined that Apple didn't infringe the other asserted claim of that patent, that Apple didn't infringe the asserted claim of the '336 patent, and that the asserted claims of the '356 patent are invalid.
To the extent the patent in question (i.e. the '674 patent) is substantially embodied in modems which Qualcomm sold, you're right, Apple wouldn't be infringing on that patent.
But the '674 patent, as I understand it, doesn't relate solely to modems. The assertion (I believe) is that the iPhones in question, and not (or not just) the modems within them, infringe that patent.
TBH I'm a little surprised at the recommendations being essentially the same in both cases before them, and the one expected tomorrow could affect the 8 series too?
If so, ALJ Pender recommended against an exclusion order. And I'd be very surprised if an exclusion order resulted from that case, even if the infringement finding stands.
You are correct, Pender found there was infringement yet still suggested there be no remedy allowed which is pretty unusual. Thanks for pointing it out, I hadn't recalled the specifics correctly.
EDIT The ruling is in re:the second cse. Apple is off the hook, patent ruled invalid.
https://www.bloomberg.com/news/articles/2019-03-26/apple-escapes-import-ban-in-2nd-qualcomm-case-at-trade-agency
The Commission determined that claim 31 of the '490 patent (the only one left in play in that case) was invalid.
EDIT: Lol. I didn't notice when I quoted your post that you had already edited it to reflect the Commission's decision. Sorry.