Lenovo Import Ban Raises No ‘Cognizable’ Public Interest Concerns, Nokia Tells ITC
“Non-party” critics of Nokia’s Tariff Act Section 337 complaint seeking an exclusion order on allegedly infringing Lenovo laptops, tablets and desktop PCs “fail to raise any cognizable” concerns that “merit burdening” the International Trade Commission with a “fact finding” on public interest implications of an import ban, replied Nokia Wednesday (login required) in docket 337-3466. But the issues unique to the standard-essential patents (SEPs) on H.264 video compression asserted in Nokia’s complaint justify the ITC spending the additional time to build a public-interest record in the docket, argued the App Association, the Computer & Communications Industry Association and Google (see report, July 21 issue).
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Banning the Lenovo goods couldn’t come at a worse time with the COVID-19 pandemic taxing supplies of laptops and tablets as demand spikes for telework and remote learning connectivity tools, said Nokia’s critics. Nokia countered that the “accused Lenovo products are a small fraction of the U.S. supply of computers and tablets.”
Any void created through a Lenovo exclusion “could easily be replaced by over a dozen competing makers, including Microsoft, Samsung, and Dell,” it said. Gartner ranked Lenovo third behind Dell and HP among top U.S. PC vendors, with 17.5% share in Q1. Microsoft placed fifth with 4.7% share, and Samsung finished Q1 outside Gartner's top 10.
Nokia doesn’t deny its critics’ arguments that computers “are useful and ubiquitous in the modern world,” it said. “But there is nothing unique or special about the Lenovo computers in question that invokes a public interest concern. And the fact that some of the asserted claims of some of the asserted patents have been declared standard essential does not change this analysis.” Nokia has “extensively and exhaustively complied with its obligations to license the H.264 patents on reasonable and non-discriminatory (RAND) terms, it said: “Lenovo refuses to meaningfully engage in negotiations.”
It’s not true, as CCIA “boldly argues,” that the ITC is never a proper forum for investigating” infringement of any SEP, said Nokia. “Such a prohibition would be a drastic shift” from ITC policy and “would stifle innovation and competition,” it said.
“Exclusion orders must be available as a remedy for SEP holders to maintain a balanced patent system and avoid harming innovation and competition,” the company said. A Dec. 19 joint policy statement from DOJ, the National Institute of Standards and Technology and the Patent and Trademark Office supports that conclusion, it said.
The App Association was right to acknowledge that exclusion orders “are indeed appropriate so long as RAND commitments are satisfied,” said Nokia. The complainant “has fully complied at all times with its obligations under applicable ITU policies,” it said. The ITC “should institute an investigation into Lenovo’s conduct” and not “deviate from its prior practice and resolve any public interest issues related to SEP patent claims at the remedial stage,” said Nokia.