The ITC has surprisingly given
noticethat the target date for the decision has been extended by one week.It's now June 30, 2011. This could either be due to a delay on the ITC'spart or a way for the ITC to give the parties more time to negotiate asettlement.
The ITC was slated to issue today itsdecision in the investigation it instituted last year at EastmanKodak's request against Apple and BlackBerry maker Research In Motion(RIM). The investigation's official title is "Certain mobile telephonesand wireless communication devices featuring digital cameras, andcomponents thereof" (investigation no. 337-TA-703). As the title shows,this is about the cameras built into smartphones -- but in a software(not hardware) sense: Kodak is asserting an image preview patent.
Inthis blog post I'll now discuss certain aspects of this dispute aheadof the decision, on which I will comment in a separate post once it hasbeen issued.
Among other things, I'll also take a look at the patent claim at issue.
Disputesof this kind usually get settled before the ITC issues its finaldecision because defendants don't want to get to the point at which theITC orders an import ban -- which is what could happen today.
For example, Kodak previously (in November 2008) filed an ITC complaint against Samsung and LGover the patent now at issue in the case against Apple and RIM, as wellas other patents. On December 17, 2009, the Administrative Law Judge(ALJ) in charge of the investigation issued a so-called final initialdetermination (FID) in Kodak's favor. The FID can still be overruled bythe ITC's highest decision-making body, the six-member Commission, whichmay or may not be the outcome of today's decision. LG settled with Kodak the day before the FID for $414 million, and Samsung, three calendar weeks later (considering Christmas, this was more like settling two business weeks later) for $550 million.
More recently, Apple settled with Nokiaat a point that was just a few weeks away from today's situation inKodak's case: after a FID that found no infringement of valid patentclaims, the Commission had decided to take another look, and a decisionwas approaching.
So why hasn't it happened in this camera (image preview) patent case?
BothApple and RIM are experienced in such processes. If they take risks,those risks are usually calculated and well-considered. The fact thatneither of them has paid up suggests they are optimistic that theCommission will reaffirm the FID and/or they may believe that even if animport ban was ordered today, they could appeal this case to the Courtof Appeals for the Federal Circuit (CAFC) and have such a ban stayedpending the appeal. In the latter case, Kodak would have to wait severalmore years, but it needs the money in the foreseeable future, whichcould give Apple and RIM some leverage.
Or maybe they are stillnegotiating and a deal will still happen at some point before thedecision is issued. If the parties agreed on a license deal, an importban wouldn't take effect anymore in practical terms.
https://fosspatents.blogspot.com/2011/06/eastman-kodak-v-apple-and-rim-todays.html