U.S. Congressmen back Microsoft before ITC

The lawmakers criticized exclusions based on standards-essential patents

An import ban against the Xbox 360 console could threaten high-paying U.S. jobs, and continued economic growth in the U.S., as the device is one of three competing game consoles at the center of the U.S. entertainment software industry, a group of Congressmen said in a letter to the U.S. International Trade Commission.

The submissions are in the context of an ITC investigation into Motorola Mobility's charges of patent infringement against Microsoft. ITC administrative law judge David Shaw has recommended a ban on Xbox consoles in the U.S.

The exclusion order could also be detrimental to consumers, and put at risk investments in developing and providing products and services for the gaming platform, said eight members of Congress including Representative Dave Reichert, a Washington Republican.

Several U.S. Congressmen have joined companies like Verizon and Nokia in opposing import bans based on alleged infringements of standard-essential patents, according to documents posted on the U.S. International Trade Commission website on Tuesday.

The U.S. Federal Trade Commission has also weighed in against a ban, stating that it was concerned that a patent owner can make a FRAND (fair, reasonable and non-discriminatory) commitment as part of the standard setting process, and then seek an exclusion order for infringement of the RAND-encumbered standards-essential patent as a way of securing royalties that may be inconsistent with the FRAND commitment. FTC made the submission in the context of the ITC investigation into Motorola's charges of patent infringement against both Apple and Microsoft.

Writing on behalf of the U.S. House of Representatives' judiciary committee, Representatives Lamar Smith, John Conyers, and Melvin. L. Watt, said that a failure to honor a RAND commitment undermines confidence in the standards system, and disrupts competition and innovation.

Left unchecked, the ability to leverage standards-essential patents to obtain an exclusion order may result in either the products being excluded from the market or in companies paying up large license fees to prevent an exclusion, the Representatives said, without making a direct reference to the Xbox.

Members of the Illinois delegation, including Representative Danny K. Davis, however were in favor of injunctive and exclusionary relief against patent infringers who will not provide reasonable compensation, without making a specific reference to the Xbox.

Motorola is not a maker of videogame consoles and any harm to the company can likely be remedied through monetary damages rather than a ban on import of the Xbox, said Representative Darrell Issa.

Motorola in Illinois was not immediately available for comment. The company said last week in a statement it would welcome having Apple and Microsoft join the more than 50 other companies who have entered into licenses and cross-licenses on a FRAND rate for its portfolio. "To date, however, neither party has been willing to enter into a cross-license on reasonable terms and thus we all find ourselves in seemingly endless litigation," it added.

John Ribeiro covers outsourcing and general technology breaking news from India for The IDG News Service. Follow John on Twitter at @Johnribeiro. John's e-mail address is john_ribeiro@idg.com

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John Ribeiro

IDG News Service
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