Lenovo avoids U.S. import ban over two Ericsson non-SEPs (for now): initial determination by ITC judge

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).