HMTX Industries and Jasco Products, first plaintiffs to file in the massive Section 301 litigation seeking to vacate the Lists 3 and 4A tariff rulemakings and get the duties refunded, strongly oppose DOJ’s prolonged briefing format and schedule proposed Monday in a motion for case management procedures (see 2010200020), said Akin Gump in a response (in Pacer) Thursday at the U.S. Court of International Trade. The government proposed the parties not begin to argue the “merits of this dispute” before 2022 or beyond, it said. “Given the ongoing harms to thousands of plaintiffs, among others, that protracted schedule is unacceptable.” The CIT instead should follow the harbor maintenance tax (HMT) litigation as a model by staying all but the HMTX-Jasco complaint and ordering the parties to file “concurrent cross-motions for summary judgment addressing particular issues, including both jurisdictional and merits questions,” said Akin Gump. Adopting the HMT litigation’s cross-motions procedure “will best achieve the aims of resolving the key legal issues in an efficient manner,” it said. “Unnecessarily delaying resolution of this case for additional months or years -- with all the attendant litigation expenses and accruing duties that would entail -- is unwarranted.” Since more than 3,500 importers filed suit, many of whose entries have already liquidated or will liquidate soon, it’s important “to confirm at the outset that the government will stipulate, as it has in other cases, that a refund remedy is available should plaintiffs prevail,” said Akin Gump. “Such relief remains critical to ensuring that these cases are handled efficiently, effectively, and with the least administrative burden possible.” DOJ hasn’t taken a position on refunds and indicated to plaintiffs it won’t do so until a test case is picked. DOJ didn’t respond to questions. DOJ’s motion for case management procedures is likely to face broader opposition, blogged law firm Thompson Hine Wednesday. "This motion is expected to trigger a raft of challenges by plaintiffs’ counsel in all of the Section 301-related cases on such DOJ positions as the composition of the Plaintiffs’ Steering Committee and the designation of appropriate test cases," it said.
Court of International Trade activity
Google wireless audio devices infringe five Sonos multiroom audio patents, complained Sonos Tuesday (in Pacer), further escalating their bitter intellectual property brawl. “In the face of Google’s unrelenting infringement, Sonos has no choice but to bring this suit,” said the complaint in U.S. District Court in Waco, Texas. “Sonos has already sued Google for infringing patents on its first group of inventions involving the set-up, control, playback, and synchronization of wireless playback devices.” The new case involves a “second group” of inventions that “tackle the novel technological challenges of how to stream music from a cloud-based service,” plus configuring how “multiple playback devices work together,” it said. The new body of patents also describe “how to dynamically adjust the equalization of a playback device based on the environment in which the playback device is operating,” it said. Sonos’ first complaint is pending in U.S. District Court in Los Angeles (see 2001070041). Google responded in June, alleging in U.S. District Court in San Francisco that Sonos stole “substantial volumes” of Google’s patented search, audio processing and streaming technology (see 2006110024). The companies remain in a fight at the International Trade Commission that shows no sign of abating over the same patents at play in Los Angeles (see 2002060070). The new complaint “illustrates the depth and breadth of our intellectual property as well as our continued innovation, and indicates the degree to which we believe Google has copied our innovations,” emailed a Sonos spokesperson. “Google has chosen to double down on its disregard for IP and smaller American inventors and we believe it is vitally important that Sonos, both for its own sake and for that of other smaller innovative companies, stand up to monopolists who try to copy and subsidize their way to further domination.” Sonos has made "misleading statements about our history of working together," emailed Google spokesperson Jose Castaneda. "Our technology and devices were designed independently. We deny their claims vigorously, and will be defending against them.”
China opposes the Trump administration's "unjustified suppression and bullying" of non-U.S. companies under the "weakest pretext of national security," said a Foreign Affairs Ministry spokesperson Monday. The U.S. District Court for the District of Columbia granted a preliminary injunction Sunday against implementing President Donald Trump’s executive order seeking to ban Chinese-owned apps TikTok and WeChat from U.S. app stores (see 2009180051). U.S. District Judge Carl Nichols issued the order (in Pacer). TikTok showed the prohibitions “likely exceed the lawful bounds proscribed” by the International Emergency Economic Powers Act, Nichols wrote in the accompanying memorandum opinion (in Pacer), which was unsealed Monday. He cited IEEPA’s limitations in regulating “informational” materials. "We hope the U.S. can earnestly respect the principles of market economy and fair competition, observe international trade rules, and foster an open, fair, just and non-discriminatory business environment for foreign companies operating and investing in the U.S.,” the Foreign Affairs Ministry spokesperson said. The Commerce Department said the government will comply with the injunction but “intends to vigorously defend the E.O. and the Secretary’s implementation efforts from legal challenges.” The EO “is fully consistent with the law and promotes legitimate national security interests,” Commerce said. TikTok said it “will continue defending our rights for the benefit of our community and employees" and continue its dialogue with the federal government.
Comments are due Oct. 2 at the International Trade Commission on the Tariff Act Section 337 import ban that Philips seeks on Hisense, LG and TCL TVs; Dell, HP and Lenovo laptops and monitors; and Intel, MediaTek and Realtek components, says Thursday’s Federal Register. Philips’ Friday complaint (login required) in docket 337-3492 alleges the PC brands and TV makers infringe four patents on “secure authenticated distance measurement” for digital video delivery content protection. The chipmakers are accused of violating two of the patents. Philips’ ITC action mirrors complaints it filed in U.S. District Court in Wilmington, Delaware, against the tech companies a day earlier. The finished products identified as infringing goods in all the complaints were sold through Best Buy, Walmart and other big-box retailers. Proposed respondents didn't comment Wednesday.
Best Buy Purchasing and Best Buy Health “have been adversely affected” by the Section 301 List 3 tariffs on Chinese imports, argued the subsidiaries Monday in a complaint (in Pacer) at the U.S. Court of International Trade. It was among the roughly 3,300 suits filed at the CIT since Thursday to vacate the Lists 3 and 4A tariffs, including 700 on Monday, the last filing day for importers to qualify for refunds if the actions are successful. There was some debate Tuesday whether the Monday deadline could be open to interpretation.
The U.S. Court of International Trade should “set aside” the List 3 and 4A Section 301 tariffs on Chinese imports as “ultra vires” (“beyond the powers”) of the Office of the U.S. Trade Representative and order the duties refunded to U.S. importers, said tech companies Dana Innovations, Foster Electric, GN Audio, Scosche Industries and Sharp Electronics in five virtually identical complaints (in Pacer). They were among hundreds filed Thursday and Friday accusing USTR of overstepping Trade Act authority and violating the Administrative Procedure Act. The suits attempt to seize on a potential tariff refund opportunity, if floor-tiling plaintiffs prevail in their case (see 2009110041). The complaints are “timely,” said the dozens of them we studied, under CIT’s residual jurisdiction provision, coming before Monday’s two-year anniversary of USTR’s List 3 Federal Register notice. Though the HMTX case “may be a long-shot, you can never say never,” blogged trade expert Ted Murphy with Sidley Austin. “If you want to preserve your right to a refund, in case the flooring companies’ action is successful, you need to put a case on file at the CIT.” Scosche suffered “an actual, imminent injury that is fairly traceable to the implementation, administration, and enforcement of List 3 and/or List 4,” said the car audio supplier. The harms “can be redressed by a declaratory judgment and permanent injunction” ruling USTR’s actions unlawful under the Trade Act and “arbitrary and capricious” under the APA, said Scosche. Akin Gump filed the original suit for HMTX using as a template the complaint it drafted for CTA two years ago. Other lawyers modeled their actions after that. USTR didn't comment.
As fallout from the annulment of Privacy Shield continues, industry and regulators in the U.S. and EU are struggling to decide how to maintain trans-Atlantic personal data flows, they said. The European Commission plans to launch an “adoption process” for new data transfer mechanisms in “the coming weeks” and hopes to finalize it by the end of the year, European Commissioner for Justice Didier Reynders said Thursday, noting there won't be any "quick fix."
TikTok sued the Trump administration Monday, challenging its effort to “ban” the company in the U.S. and citing a lack of due process (see 2008070032). TikTok prefers constructive dialogue over litigation, but President Donald Trump’s executive order leaves the company with “no choice,” it said Monday. The White House and DOJ didn’t comment.
No company “has an obligation to commit its patents to a standard,” commented the App Association Monday (login required) in opposition to Nokia’s Tariff Act Section 337 complaint at the International Trade Commission alleging Lenovo laptops, tablets and desktop PCs infringe four H.264 patents, plus a fifth on data search and discovery (see 2007080048). When a company volunteers to commit its patents to a standard, “as Nokia has,” the “promise” it makes to the standard-setting organization to license the intellectual property on fair, reasonable and nondiscriminatory (FRAND) terms “acts as a crucial constraint on the abuse of market power” associated with standards-essential patents (SEPs), said the group. App Association members “rely on a competitive information and communications technology hardware environment, specifically with respect to SEP licensing,” it said. Without that, members would be “significantly hampered” in providing U.S. consumers and enterprises “with leading-edge software and hardware products and services that require an increasing amount of bandwidth and computing power to meet customer demands,” it said. The exclusion order Nokia seeks “should only receive consideration” when a licensee is “demonstrably acting unreasonable” or is acting “outside of the scope of the SEP holder’s voluntary FRAND commitment,” said the association. Lenovo is guilty of neither, it said: “SEP holders denied an exclusion order do not become disenfranchised as they have the ability to recover monetary damages through the courts.”
NATOA and other state and local government groups said localities need more support from the FCC in addressing residents' RF concerns, in replies to a December NPRM (see 1912040036). CTIA noted wireless devices are safe for all consumers based on FCC rules. CTA said regulators should use a flexible approach and address wireless power transfer (WPT) as it considers new RF rules. Replies are posted through Tuesday in docket 19-226.