13 Pages Posted: 10 Jul 2012
Date Written: July 9, 2012
In this comment to ITC Investigation 337-TA-745 (Certain Wireless Communication Devices, Motorola v. Apple) we, as teachers and scholars of economics, antitrust and intellectual property, remedies, administrative, and international intellectual property law, former Department of Justice lawyers and chief economists, a former executive official at the Patent and Trademark Office, a former counsel at the ITC Office of the General Counsel, and a former Member of the President’s Council of Economic Adviser take the position that ITC exclusion orders generally should not be granted under § 1337(d)(1) on the basis of patents subject to obligations to license on “reasonable and non-discriminatory” (RAND) terms. Doing so would undermine the significant pro-competitive and pro-consumer benefits that RAND promises produce and the investments they enable. A possible exception may arise if district court jurisdiction is lacking, the patent is valid and infringed, and the public interest favors issuing an exclusion order. We explain our position in the comment.
Suggested Citation: Suggested Citation
Chien, Colleen V. and Gilbert, Richard and Shapiro, Carl and Cotter, Thomas F. and Fusco, Stefania and Ghosh, Shubha and Goldman, Eric and Burk, Dan L. and Cahoy, Daniel R. and Carrier, Michael A. and Contreras, Jorge L. and Miller, Joseph Scott and Risch, Michael and Schultz, Jason and Sichelman, Ted M. and Rai, Arti K. and Strandburg, Katherine J. and van Zimmeren, Esther and Sheppard, Christal A., RAND Patents and Exclusion Orders: Submission of 19 Economics and Law Professors to the International Trade Commission (July 9, 2012). Santa Clara Univ. Legal Studies Research Paper No. 07-12; UC Berkeley Public Law Research Paper No. 2102865. Available at SSRN: https://ssrn.com/abstract=2102865