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Statement Regarding the Public Interest by Non-Party Intel

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Corrected Statement Regarding Public Interest by Non-Party Intel

This case raises an issue of exceptional importance for maintaining the Nation’s competitiveness in high-technology industries: when should the governing public interest factors preclude an Exclusion Order sought by a patentee that has contractually committed to license its “standard-essential patents” (“SEPs”) to all applicants on fair, reasonable, and nondiscriminatory (“FRAND”) terms. Intel submits that the public interest should generally preclude an Exclusion Order on SEPs that are subject to a FRAND commitment, except in limited circumstances. Such exceptions include when: (i) a U.S. court with competent jurisdiction or a binding arbitrator previously determined (prior to institution of the ITC investigation) in a final, non-appealable judgment that the complainant has made an offer to the respondent that satisfied its FRAND obligations and the respondent rejected the offer; or (ii) the respondent and its affiliates are not subject to the jurisdiction of U.S. courts and the ITC’s in rem authority is the only recourse.

The Commission has broad discretion to refuse an Exclusion Order when such an order would harm the public interest. 19 U.S.C. § 1337(d) (1). As part of its public-interest analysis, the Commission must evaluate “the effect of such exclusion upon the public health and welfare, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, and United States consumers.” Id.; see also id. § 1337(f) (1) (same factors considered in evaluating cease-and-desist order). In the past, the Commission has refused to enter Exclusion Orders that would cause serious harm to the public interest.

Read the full Corrected Statement Regarding Public Interest by Non-Party Intel.