Comcast’s Lobbying Won’t Dilute the ITC’s Enforcement Authority

“TiVo has proven its case to an administrative law judge, the ITC, and the Federal Circuit Court of Appeals, and yet Comcast is still hoping to get the president and the Supreme Court to separately bail them out.” last month, TiVo won its second intellectual property battle with Comcast at the International Trade Commission (ITC) and is poised to win a third ruling this summer. The agency issued an exclusion order under Section 337 of the Tariff Act to prevent Comcast from importing digital video receivers that violate TiVo’s Rovi cable box patents. Now, unable to win on the argument that it did not infringe on TiVo’s patents, Comcast is trying again, this time attacking the ITC as an institution.

Falling Flat

In March, Comcast petitioned the Supreme Court to overturn a March U.S. Court of Appeals for the Federal Circuit judgment, which upheld the first ITC ruling. Comcast does not argue that it did not infringe on TiVo’s patents. Instead, it contends that it did not import any infringing content and questions whether the ITC should be able to adjudicate cases with domestic respondents. The Electronic Frontier Foundation and R Street Institute, which both support weaker intellectual property protections, filed an amicus brief along with the Innovation Defense Foundation, Lincoln Network, and Computer & Communications Industry Association, on Comcast’s behalf, which focused on restricting the ITC’s jurisdiction. They emphasize the policy argument that the ITC’s remedies “tend to favor patent holders and burden defending parties haled before the agency.”

The legal arguments against the ITC’s jurisdiction fall flat on their face. Section 337’s plain language states that the ITC has the power to block “the importation into the United States, the sale for importation, or the sale within the United States after importation by the owner, importer, or consignee, of articles that . . .infringe a valid and enforceable United States patent.” There is nothing in the Statute’s language which limits a cause of action to foreign respondents. Indeed, it even prohibits “the sale within the United States after importation,” suggesting a broad power of exclusion.

Comcast also tries for a narrower claim that the actual contents of the cable at issue in the box did not infringe on TiVo’s patent. It further argues the box only violated the patents in question when Comcast’s customers use them domestically, so it did not import “articles that infringe.” However, as the Federal Circuit noted, it is “undisputed that Comcast induces its customers to directly infringe these patents” and that “direct infringement of the . . .patents occurs when the imported X1 set top boxes are fitted by or on behalf of Comcast.”

Comcast also reasons because they did not personally import the infringing components, they were not an “importer” under the statute. Yet, this ignores clear case law that applies section 230 to those who “induce” importation, and these products were tailored solely for Comcast. Creating such a big loophole will allow anyone to evade responsibility for importing infringing goods by hiring a middleman.

The policy arguments against the ITC are even weaker. While Comcast and its allies claim that the ITC is biased towards patent holders compared to a district court, both the ITC and courts apply the same law as to whether an item violates someone else’s intellectual property. In many respects, the ITC confers advantages towards alleged patent infringers like Comcast that they would not receive in a district court. The ITC does not grant monetary damages, while a court can impose treble damages for intentional patent infringement. The ITC can issue a public interest waiver even if they find an item infringes, and the president has the power to overrule a final ITC decision for policy reasons. Neither of these options are available for a district court patent case, and yet after its two recent losses, Comcast now grumbles that the ITC is unfair to patent licensees.

Glutton for Punishment

In 2019, Comcast spent $13.4 million on lobbying – over 100 times more than TiVo’s $125,000. The ITC’s public interest rulings take in congressional input, and the executive branch has veto power, making these rulings ripe for lobbying. TiVo only brought the case before the ITC because they were confident that Comcast’s case was so weak that its enormous lobbying advantage would not be enough to ignore the law. All of the legal outcomes thus far have proven its logic correct.

And yet, Comcast refuses to concede defeat. Even though the president declared it his mission to “destroy” the company’s image, the company hopes for a presidential veto of the second ITC ruling from last month and a Supreme Court overruling on the first case of patent infringement that was affirmed by the Federal Court in March.

The pro-Comcast amicus brief describes the ITC’s injunction as “duplicative,” but Comcast is the party that is using its enormous appetite for repetitive litigation to make TiVo win over and over. TiVo has proven its case to an administrative law judge, the ITC, and the Federal Circuit Court of Appeals, and yet Comcast is still hoping to get the president and the Supreme Court to separately bail them out. If history is any indication, the company’s obstinance will not prove effective. The president and the Supreme Court will soon ignore Comcast’s massive lobbying and legal obfuscation, faithfully applying the law to stop its IP theft.

Note: The author does not have any interest in the case discussed.

Image Source: Deposit Photos
Author: stuartmiles
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Join the Discussion

2 comments so far.

  • [Avatar for TFCFM]
    May 12, 2020 10:21 am

    I don’t think I understand the notion underlying the article. Should litigant Comcast merely roll over even though it didn’t like the outcome of the dispute at the lowest level? (By extension, should patent applicant roll over and never argue with patent examiner rejections?) If so, should Comcast decline to appeal and seek a presidential veto merely because this author seems to dislike them?

    Litigants who lose at the trial court level quite frequently appeal. Moreover, when a litigation (or ITC) outcome is subject to a political modification, such litigants press for a modification in their favor. A litigant’s counsel might well be committing malpractice if they didn’t at least try.

    Apart from the fact that the author apparently disagrees with Comcast on the merits of this dispute, why should this or any other litigant not pursue lawful avenues of appeal?

  • [Avatar for Pro Say]
    Pro Say
    May 11, 2020 03:40 pm

    When you can’t pound the facts . . . can’t pound the law . . . can’t pound the ITC . . . pound Congress.

    Gee; now where or where have we heard this before?

    Hint: Think FAANG.