Yesterday we reported that International Trade Commission (ITC) judge David Shaw recommended to the full ITC Commission that the import of Microsoft’s Xbox 360 slim models should be banned to the US, but patent expert Florian Mueller doesn't see it happening. Speaking to GameIndustry International, Mueller (who runs the excellent patent law blog Foss Patents) says that the ITC will take public interest into account before making such a ruling. He calls Shaw's recommendation business as usual as well.
"I've never seen an ITC judge make any other recommendation than an exclusion order if his initial determination is that there is a violation," says Mueller. "This is the normal course of business."
"Unlike judges at courts, ITC judges don't make the decisions: they merely recommend them, he continued." he continued. "Their recommendations are very frequently not adopted by the Commission, the six-member decision-making body at the top of the ITC. Not only does the Commission overrule those judges with respect to the actual violations but the Commission also has the final say on remedies."
Mueller also told GamesIndustry International that developers and publishers will inevitably petition the court, because an import ban would hurt their business. They would urge the ITC to overturn the ruling.
"Even if the Commission agreed with the judge on some or all of the violations, there are public interest considerations for which an exclusion order should not be entered, or at least not before or during the Christmas Selling Season. The more Xbox games makers write to the ITC about this, the less likely an import ban will be."
Mueller closes by saying that the inevitable outcome in the patent dispute between Motorola and Microsoft is that the Federal Court in the state of Washington will force both companies to enter into a licensing agreement, the terms of which will be set by the court. After that Microsoft's Xbox 360 will no longer be violating any patents.
Source: GameIndustry International