ITC judge releases full determination, says Hytera employees ‘unquestionably copied’ Motorola tech

Typically, the ITC commission makes its rulings within four months of an administrative law judge’s determination, with the ruling often becoming effective within a few days after the ruling is announced. However, the U.S. president—currently Donald Trump—has up to 60 days to review the ITC commission’s ruling and potentially overturn it, if the president deems it to be in the public interest.

If ITC commissioners decide not to review the determination, McNamara’s recommendation that Hytera be prohibited from importing and selling the identified DMR product would become the rule of law, subject to a potential presidential review by Trump. If the ITC commissioners do not review the case, the ruling could become effective much earlier than Nov. 6.

If ITC commissioners choose to review the case, they would consider McNamara’s recommendation and the evidence from the proceedings in the matter, but the commissioners are not bound by McNamara’s determination that Hytera should be prohibited from importing and/or selling products associated with the alleged patent infringement. ITC commissioners can reach a different finding than the administrative law judge, suggest a different remedy or return the case back to McNamara, according to multiple sources.

An ITC ruling that reverses McNamara’s findings would let Hytera Communications continue to sell its current product portfolio in the United States.

An ITC commission ruling against Hytera Communications that calls for the company to stop importing patent-infringing goods into the U.S. or being sold in the country typically would become effective with a few days of the ruling being announced.

Despite this effective date, the Hytera products theoretically could continue to be imported and sold in the U.S. during the 60-day presidential review. However, during this time, any sales could be subject to a bond—sometimes as much as 100% of the product’s value—that would be paid to the complainant, which is Motorola Solutions in this case. As a practical matter, such a bond often discourages the company that is being penalized from trying to sell infringing products in the U.S. during this time, according to a source familiar with ITC proceedings.

McNamara’s determination recommends the inclusion of a 44% bond—about $1.18 million—if the matter reaches the presidential-review stage.

Sources familiar with the Hytera-Motorola Solutions dispute indicate that customers with Hytera equipment and systems that utilize any of the infringing patented technologies would be able to continue using their existing systems, even if the ITC and President Trump uphold McNamara’s findings and recommendations.