Summary
TSRA has now lost the initial round of its much-watched ITC case, but the company clearly wants us to think that the loss is on a discrete methodology question that can likely be reversed on appeal. The only problem for us? We can't really judge that claim ... yet.
Analysis
Prior to the Initial Determination, most commentators were worried that TSRA's patents might be found invalid. After all, the patents are under seige on the ground at the Patent Office; and this ALJ knows that and indeed has seen the documents that have the Patent Office asking hard questions. But, when the decision came down, that turned out not to be the problem. The patents were all deemed valid.
The fight instead turned out to be on the question of infringement. The ALJ decided that TSRA's technology is not technically being used by the accused companies. Why? Well, we do not yet know (the opinion is not yet public) but TSRA has put out press releases pinning the loss on a question of methodology. Indeed, the company tells us that the ALJ rejected this particular method of infringement analysis even though the ITC has previously endorsed it.
If true, that would be an interesting issue for appeal. After all, while it might be hard to get an appellate body to overrule a lower decision-maker on intensely fact-specific analysis, it seems more plausible to frame a methodology question and lure an appellate body into the fight.
The real question, then, is whether the decision actually does turn only on some methodology fight and whether that methodology really was used and approved in previous (sufficiently similar) ITC litigation. And we will know a lot about that as soon as the redacted version of the ALJ's opinion becomes public.
