By George A. Hovanec of Buchanan Ingersoll and Rooney PC
On September 12, 2007, the CAFC granted a stay, pending appeal, of a limited exclusion order ("LEO") against Kyocera, Motorola, Samsung, LG, Sanyo, T-Mobile and AT&T so that wireless handsets containing Qualcomm chips found to infringe a Broadcom patent could continue to be imported. The LEO had been granted by the USITC on June 7, 2007 against certain chips manufactured by Qualcomm which were found to infringe U.S. Patent No. 6,714,983 of Broadcom in Investigation No. 337-TA-543. Qualcomm, however, was treated differently by the CAFC. The CAFC declined to grant a stay of the LEO as it applied to Qualcomm and to Qualcomm's "redesigned chipset solution (and products containing them)." The CAFC also declined to stay a cease and desist order against Qualcomm.
Kyocera, Motorola, Samsung, Sanyo, T-Mobile, LG and AT&T had moved to stay the LEO, pending appeal, based on the argument that 19 U.S.C. § 1337(d)(1) and (d)(2) "make clear that the ITC cannot exclude products imported by an entity unless it first determines that the entity has violated section 337." Although some of these companies had later intervened in the ITC proceedings during the remedy phase, only Qualcomm was a respondent during the earlier liability phase of the ITC investigation. The CAFC found that the appellants had raised a substantial question under these circumst...
