Yesterday American Judge David Shaw recommended to the ITC Commission that the import of 4gb and 250gb Xbox slim models to the US should be banned. The judge ruled in the long standing case between Microsoft and the Google-owned Motorolla over four counts of patent infringement.
GamesIndustryBiz report that patent expert, Florian Mueller believes the ban is unlikely to be enforced.
“I’ve never seen an ITC judge make any other recommendation than an exclusion order if his initial determination is that there is a violation,” says Mueller.
“This is the normal course of business.
“Unlike judges at courts, ITC judges don’t make the decisions: they merely recommend them. Their recommendations are very frequently not adopted by the Commission, the six-member decision-making body at the top of the ITC. Not only does the Commission overrule those judges with respect to the actual violations but the Commission also has the final say on remedies.”
The patent expert points out that the more game makers write to the ITC over this, the less likely an import ban will be implemented.
“Even if the Commission agreed with the judge on some or all of the violations, there are public interest considerations for which an exclusion order should not be entered, or at least not before or during the Christmas Selling Season. The more Xbox games makers write to the ITC about this, the less likely an import ban will be.
“If many games makes write to the ITC, then I doubt that there will be ever be an actual Xbox import ban. What’s more likely to happen is that a federal court in Microsoft’s home state of Washington will set the terms of a license agreement that Motorola and Microsoft will have to enter into. As a result, Microsoft will be licensed and the Xbox won’t be an infringing product.”