International Trade Commission judge David Shaw has recommended that the import and sale of Xbox 360 consoles in the US be halted immediately. Sounds drastic, I know, but maybe it’s not as bad as it sounds.
Speaking with GI.biz, patent expert Florian Mueller says “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. 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.”
Mueller says that when making their final decision, the ITC’s Commission takes “public interest considerations” into account, which includes complaints from people who develop and sell Xbox 360 games. As such, he thinks “What’s more likely to happen is that a federal court in Microsoft’s home state of Washington will set the terms of a licence 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.”