US judge recommends ban on Xbox imports as patents war rages on

23 May 2012

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A judge from the International Trade Commission (ITC) in the US has recommended that Xbox consoles should no longer be imported into or sold in the US should Microsoft lose its patent battle with now Google-owned Motorola Mobility.

The ITC is currently investing charges by Motorola that Microsoft’s Xbox 360 S 4GB and 250GB consoles violate four of its patents pertaining to its video compression codec and wireless technologies.

The latest document from these proceedings reveals that Motorola is seeking a limited exclusion order “barring from entry into the United States all gaming and entertainment consoles, related software and components thereof that infringe one or more of the asserted claims of the patents-in-suit.”

In plain English: Motorola wants a ban on importing Xbox products in the US.

Enforcement of intellectual property rights

While Microsoft has argued the case that these measures would be “contrary to the public interest”, administrative law judge David Shaw is unconvinced by this argument. In the ‘Recommended determination on remedy and bonding’ document, he notes that what’s really in the public interest is the enforcement of intellectual property rights. “Not enforcing those rights in light of a potential economic impact occurs only in exceptional circumstances,” the document reads.

In light of this, Shaw has recommended that, if it is ruled that Microsoft indeed infringed on Motorola’s patents, the ITC should issue the limited exclusion order and ensure it is properly enforced.

Cease and desist

The ITC may also issue a cease-and-desist order, which can be issued when the merchant in question holds a commercially significant inventory of infringing products. This would stop Microsoft from selling any consoles already stored in the US and Motorola believes this, too, is warranted, as sales of these products could undercut the effect of the exclusion order.

On evaluating the level of stock of the two contentious consoles in distribution centres in the US, and their market value, the judge has also deemed a cease-and-desist order appropriate in the event that a violation is found.

These recommendations put Microsoft in a precarious position as an initial determination document released by Shaw earlier this year concluded that Motorola’s patents were indeed violated. However, Wired reports that Microsoft remains optimistic that the case will go its way, stating: “We remain confident the commission will ultimately rule in Microsoft’s favour in this case.”

Shaw’s recommendations will be deliberated upon by the ITC’s board and they will have until August to decide what’s to be done. Should they agree with Shaw’s ruling, the case will then be escalated to the Office of the President, where President Barack Obama could either sign off on or overturn the decision. Ironically, one ITC verdict already being reviewed by the Obama Administration is a limited exclusion order for Motorola phones and tablets found to have infringed on Microsoft’s patents.

And the war rages on.

Elaine Burke is managing editor of Siliconrepublic.com

editorial@siliconrepublic.com