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Statement Regarding the Public Interest by Non-Party Intel

Statement Regarding the Public Interest by Non-Party Intel

This case raises an issue of exceptional importance for maintaining the Nation’s competitiveness in high-technology industries and enhancing the welfare of U.S. consumers: whether, in light of the governing public interest factors, the Commission should refrain from issuing an Exclusion Order sought by a patentee that has contractually committed to license its “standard essential patents” (“SEPs”) to all applicants on reasonable and non-discriminatory (“RAND”) terms but has failed to honor that commitment. The Commission should determine that it would be inappropriate to issue such an order in these circumstances. An Exclusion Order is unnecessary to protect intellectual-property rights in this case, because Motorola has agreed to license those rights to all comers. Moreover, an Exclusion Order here would harm the public interest and U.S. consumers by facilitating the unfair exploitation of market power that was created by an industry standard. This market power, which Motorola agreed to forego in favor of a RAND royalty, would not have existed absent Motorola’s RAND commitment because the standard setting organizations (“SSOs”) that promulgated the standards at issue condition the incorporation of a patent into a standard on the receipt of a RAND commitment.

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 Statement Regarding the Public Interest by Non-Party Intel.

Statement Regarding the Public Interest by Non-Party Intel

This case raises an issue of exceptional importance for maintaining the Nation’s competitiveness in high-technology industries and enhancing the welfare of U.S. consumers: whether, in light of the governing public interest factors, the Commission should refrain from issuing an Exclusion Order sought by a patentee that has contractually committed to license its “standard essential patents” (“SEPs”) to all applicants on reasonable and non-discriminatory (“RAND”) terms but has failed to honor that commitment. The Commission should determine that it would be inappropriate to issue such an order in these circumstances. An Exclusion Order is unnecessary to protect intellectual-property rights in this case, because Motorola has agreed to license those rights to all comers. Moreover, an Exclusion Order here would harm the public interest and U.S. consumers by facilitating the unfair exploitation of market power that was created by an industry standard. This market power, which Motorola agreed to forego in favor of a RAND royalty, would not have existed absent Motorola’s RAND commitment because the standard setting organizations (“SSOs”) that promulgated the standards at issue condition the incorporation of a patent into a standard on the receipt of a RAND commitment.

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 Statement Regarding the Public Interest by Non-Party Intel.

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