The newest entrant is the United States International Trade Commission ("ITC"), which is not even a judicial body, but an agency which nevertheless has apparently decided that it has the investigative power, knowledge and economic and legal foresight to determine when patents have been infringed and when not, and to take action, if imported elements are involved, including the banning of imports (e.g., as in the case discussed here, issuing a "... limited exclusion order prohibiting the unlicensed entry for consumption of mobile devices, associated software and components thereof...that are manufactured abroad by or on behalf of, or imported by or on behalf of, Motorola.").
This is a completely new twist in setting up indirect trade barriers based on simple patent infringement allegations which have not been decided by courts of law -- a totally bizarre development which started with the HTC case that we posted about recently, and which is now continued here.
The way it looks to us, the USA does not need any "real" courts to determine patent questions involving products made in international cooperation. Rather, patent trolls can now get their evil work done simply by relying on power-hungry trade agencies ready to issue orders as needed.
The newest case is reported at The Verge by Matt Macari under the title Microsoft wins ban on Motorola Android devices from the ITC, who writes:
The ITC -- whose job should be international trade tariffs and not the regulation of domestic competition -- are not at all disturbed by the fact that the case involves competing U.S. companies in the smartphone and PC tablet industry."We saw this week just how powerful an import ban can be as US Customs officials enforced an ITC exclusion order delaying the importation of new HTC One X and Evo 4G LTE smartphones into the country, and it looks like Motorola Mobility could be facing a similar fate. On Friday, the full commission of the ITC sided with Microsoft in ruling that Motorola Android devices infringe US patent no. 6,370,566, issuing an order that could keep products like the Razr, Atrix, Xoom tablet, and several other models off US shelves in the future."
Nor is the ITC disturbed that this is clearly a case in which the purpose of patent infringement claims is to harm the competition rather than to actually gain any patent licensing fees, should such be due.
The award of such license fees, if justified, would be the job of "real" courts.
Rather, the ITC has seen that it can exercise its trade powers and flex its muscles by banning not only the import of allegedly patent infringing devices themselves, but also "associated software" or "components". The ITC need not worry if "real" courts later negate their findings. The no-name ITC Commissioners appear to be accountable to no one in particular for their decisions, nor is there an ITC appeals agency. Just wide-reaching orders by no-names affecting gigantic sectors of the economy.
Now THAT is government over-reaching.
Thus a completely new chapter in patents begins, adding new injury to an already desolate patent system, and now extending the evils of patent trolling to the imposition of international trade barriers by a trade commission having no patent expertise and no judicial standing.
Government by fiat. Frightening.