The Department of Justice and the US Patent and Trademark Office sent a policy statement [PDF] today, suggesting that the International Trade Commission or ITC back away from enforcing "exclusion orders," which can kick a product off the US market in cases involving standards-based patents.
It's an important issue which just came up last week when the Federal Trade Commission closed its 19-month investigation of Google over antitrust issues. A variety of corporate patent battles have been moved to the ITC recently, including some of the biggest struggles over smartphones.
In closing that investigation, the FTC said that Google shouldn't ask for exclusion orders or injunctions on its standards-based patents.
That sentiment is now being echoed by the DOJ and US Patent Office—for the most part. There are some pretty big exceptions, such as situations where a potential licensee refuses to take a license on a "fair, reasonable and non-discriminatory" or FRAND basis.
Unsurprisingly, one company that was critical of the FTC ending its investigation of Google without charges was Microsoft. Today, Microsoft praised the DOJ/PTO statement as a tougher rule than the one that the FTC endorsed and suggested that the FTC should re-think its position on patents, which (at least according to Microsoft's reading) would allow for more exceptions.
Yesterday, Microsoft also filed papers asking a judge to insist that Google withdraw two of the three patents that Motorola has used against it in an ITC case, because they are based on standards-essential patents. Despite the fact that FTC chief Jon Leibowitz said Google has to shut down its ITC cases, Microsoft noted that the company hasn't yet done so—even as deadlines are looming.
Update: Late today Google filed papers indicating it has withdrawn its standards-based patent claims.
In an e-mailed statement, Microsoft Deputy GC David Howard said, "We're pleased Google has finally withdrawn these claims for exclusion orders against Microsoft, and hope that it will now withdraw similar claims pending in other jurisdictions as required by the FTC Consent Order."
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