As the US International Trade Commission is about to decide whether to ban imports of Microsoft’s Xbox 360 game console, a team of rivals including Apple, Nokia, Intel, Activision, HP and Cisco have issued a letter to the ITC written requesting not to stop selling the Xbox 360 game console. Product. Numerous members of the US House of Representatives have also weighed in on Microsoft’s behalf.
An ITC administrative judge recently recommended that the commission ban the 4GB and 250GB versions of the Xbox console due to the violation of standard-essential, video-related patents held by Motorola Mobility, which is now a division of Google. Pending a final decision, an IP attorney representing Apple, Mark Davis, wrote to the committee on June 8, saying that Motorola is committed to licensing patents on fair, reasonable, and non-discriminatory terms (FRAND ), but bypasses FRAND requirements in suing Microsoft (as well as suing Apple in similar cases).
“Apple respectfully claims that any exclusion order directed against Microsoft would significantly undermine the standards-setting process and frustrate FRAND’s purpose,” Davis wrote (Scribd link). More testimony on behalf of the Xbox came from Activision, Nokia, HP, Cisco and Intel, all of whom said the public interest outweighed Motorola’s concerns.
Numerous members of the US House of Representatives also submitted letters opposing an Xbox ban. For example, U.S. Representative Darrell Issa (R-CA) wrote that an import ban would be inappropriate because it would be based on standards-essential patents, and harmful because it would exclude the only video game console made by a U.S. company from the market. The letter, along with others from delegates Dave Reichert (R-WA), Lamar Smith (R-TX) and Sue Myrick (R-NC), is dated June 8 and was released today on the ITC documents site.
Motorola has won a ruling that Microsoft infringes four patents (links to the patents here), covering the H.264/MPEG-4 Part 10 video coding standards and the 802.11 WiFi standards. In its defense, Microsoft pointed out that by getting patented technology accepted into industry standards, Motorola has “committed to IEEE, ITU and ISO standards that their essential patents are licensed on a non-discriminatory basis and on fair and reasonable offer conditions.”
Separately, Microsoft also won an ITC import ban against Motorola Android devices that infringe Microsoft patents, but Microsoft claimed patents that were not committed to industry standards and thus unencumbered by FRAND obligations.
Members of the Illinois Congressional delegation (Motorola’s home state) led by Danny Davis (D-IL) came out leniently in favor of an Xbox import ban in a letter to the ITC, not specifically mentioning the Xbox, but saying that “we strongly advocate protection of intellectual property rights, including injunctions and exclusions.”
The Federal Trade Commission also weighed in, as we reported last week, saying the ITC should ban neither Xboxes nor iPhones. While there seems to be no doubt that Microsoft has infringed the patents, the majority of those filing opinions with the ITC oppose the import ban on the grounds that Motorola should never have sued with standard-essentials in the first place patents.