Court stays import ban while Qualcomm appeals

Court stays import ban while Qualcomm appeals

US Court of Appeals holds off action against Qualcomm-based phones

The US Court of Appeals for the Federal Circuit has granted a stay on an import ban against mobile phone handsets that use some Qualcomm chips.

The International Trade Commission ordered the ban in June after the Qualcomm chips were found to infringe Broadcom patents. It only affected future models, not current imports.

If imposed, it could affect handset makers including Motorola, Samsung Electronics and others, who filed motions seeking the stay. The latest move lets those manufacturers bring in the new phone models while Qualcomm appeals the ITC's order and seeks a reversal of the patent-infringement ruling.

The fight for the stay was considered an uphill battle. Smith Brittingham, a lawyer with Finnegan, Henderson, Farabow, Garrett & Dunner, said in June he could only remember one time when such a ruling had been stayed pending an appeal. "It would be a significant victory for Qualcomm," he said.

Last month the Bush administration turned down a request by Qualcomm to stop the ban.

The stay affects the third-party companies that filed motions, which also include Kyocera Wireless, Sanyo Fisher, T-Mobile USA, LG Electronics MobileComm USA and AT&T Mobility. The circuit court didn't grant a stay for Qualcomm's own imports, but Qualcomm does not itself import the chips found to infringe Broadcom's patents, according to a Qualcomm press release.

Broadcom went to the ITC seeking an import ban only against Qualcomm. The third parties and Qualcomm argued in the appeals court that the ITC didn't have the authority to exclude products imported by other companies.

The court said the third parties had a substantial case and the harm they might suffer weighed in their favour, according to Qualcomm.

Broadcom could not immediately be reached for comment.

In July, Broadcom said it reached a deal with Verizon Wireless Inc. that would let Verizon continue to import phones using the disputed technology. Under that deal, Verizon will pay Broadcom US$6 for every handset, PDA or data card that uses EV-DO (Evolution-Data Optimised) mobile broadband technology.

The payments have a ceiling of US$40 million per calendar quarter and a lifetime maximum of US$200 million. As part of the deal, Verizon also will drop its effort to overturn the ruling.

The patent fight is one of a series of intellectual-property disputes between mobile pioneer Qualcomm and Broadcom, a communications chip maker that has moved aggressively into the mobile arena.

Nancy Gohring in Seattle contributed to this story

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