The problem is that in intellectual property cases, the ITC's tool is singular and blunt. If it finds an IP violation, it can ban the infringing product, or not. There is no other remedy. But as the courts have previously ruled, the ITC is "fundamentally a trade forum, not an intellectual property forum." And in our modern digital economy, the ITC is less well suited than ever to make granular IP determinations -- and hand down sledgehammer penalties.
The firms in question are negotiating royalty rates. And the petition to the ITC asking for extraordinary measures appears to be a way to gain leverage.
For now, the ITC should exercise common sense and not blow up the American mobile market. In the future, we should reconsider the broader policy of asking the ITC to perform delicate IP surgery with a sledgehammer.
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