NOTE: This order is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-1392, -1393, -1394, -1422, -1425, -1426, -1427, -1431, -1433, -1464

LG ELECTRONICS MOBILECOMM U.S.A., INC., Appellant, and CELLCO PARTNERSHIP (doing business as Verizon Wireless), Appellant, and QUALCOMM INCORPORATED, Appellant, and SAMSUNG ELECTRONICS CORPORATION, LTD., Appellant, andSPRINT NEXTEL CORPORATION, Appellant, and MOTOROLA, INC., Appellant, and AT&T MOBILITY LLC (formerly k nown as Cingular Wireless, LLC), Appellant, and KYOCERA WIRELESS CORPORATION, Appellant, and T-MOBILE USA, INC., Appellant, and SANYO FISHER CO., Appellant,

v. INTERNATIONAL TRADE COMMISSION, Appellee, and BROADCOM CORPORATION, Intervenor. ON MOTION

2007-1392 et al. 2Before MICHEL, Chief Judge , MAYER and PROST, Circuit Judges

. PROST, Circuit Judge

. O R D E R LG Electronics MobileComm U.S.A., Inc., Cellco Partnership (doing business as Verizon Wireless) (Verizon), Qualco mm Incorporated, Samsung Electronics Corporation, Ltd., Sprint Next el Corporation, Motorola, In c., AT&T Mobility LLC, Kyocera Wireless Corporation, and T-Mobile USA, In c. each move for a stay, pending appeal, of the limited exclusion order (L EO) issued by the International Trade Commission (ITC) on June 7, 2007. The ITC and Broadcom Co rporation each oppose. Verizon and Qualcomm each reply. The ITC moves to di smiss the appeals for lack of jurisdiction. Verizon, Qualcomm, AT&T, Sprint, and LG each oppose, and Samsung and Motorola file a joint opposition. Ky ocera joins the oppositions f iled by Verizon and the other appellants. The ITC replies. Alcatel-Lucent moves for leave to file a brief amicus curiae. The ITC opposes. APCO International , the District of Columbia, the San Diego Police Department, the International Associati on of Chiefs of Police, the International Association of Fire Chiefs, the National Emergency Number Association, and the National Public Safety Telecommunications Counc il move for leave to file a brief amicus curiae. The ITC opposes. CTIA-The Wireless Association, the Un ited States Telecom Association, PCIA-The Wireless Infrastruc ture Association, UTStarcom, Inc., Bridgewater Systems Inc., Crown Castle In ternational Corp., Infospace, American Tower Corporation, Syniverse Technologi es, Smith Micro Software, Inc., and PacketVideo Corporation move for leave to file a brief amicus curiae. The ITC opposes. Broadcom moves for leave to file new ev idence in support of its opposition to the

2007-1392 et al. 3motions to stay. Broadcom states that LG and Kyocera oppose and the ITC does not oppose. Qualcomm responds. Verizon oppos es Broadcom’s motion. Samsung joins the opposition filed by Verizon. Broadcom owns a patent di sclosing, inter alia, a power saving technique for wireless devices. Qualcomm contracts with thir d parties for the manufacture and sale of baseband processor chips 1 outside of the United Stat es. The chips are then incorporated into wireless handsets and other devic es at facilities outs ide of the United States. LG, Samsung, Motorola, and Kyoc era each purchase Qualcomm chips and incorporate them into devices outside the United St ates, then import the devices into the United States for sale. Sprint, Verizon, AT&T, and T-Mobile operate wireless networks. Broadcom filed a complaint, naming Qual comm as the only respondent, alleging unfair acts in violation of 19 U.S.C. § 1337. Broadcom alleged that certain Qualcomm chips infringe Broadcom’s patents. The Admi nistrative Law Judge (ALJ) bifurcated the proceedings into two phases, liability and rem edy. LG, Verizon, Qualcomm, Samsung, Sprint, Motorola, and Kyocera were not involv ed in the liability phase but intervened in the remedy phase of the ITC proceedings. 2 AT&T and T-Mobile did not participate in the ITC proceedings. 3

1 The LEO covers both chips and chipsets , which are combinations of chips. In the interest of simplicity, this order refers to both collectively as chips.

2 Verizon moved for leave to inte rvene in the liability phase. The ALJ denied the motion.

3 The ITC denied T-Mobile’s motion for leave to intervene and rejected a submission filed by AT&T.

2007-1392 et al. 4In the liability phase, the ALJ found that Qualcomm’s chips, when programmed to enable power saving features, in fringe one of Broadcom’s patents. With respect to remedy, Broadcom sought excl usion of not only Qualcomm chips, but also cellular telephone handsets and other handheld wireless devices imported by non-parties, including LG, Samsung, Motorola, and Kyocera, containing Qualcomm chips. The ALJ recommended, however, that the ITC excl ude only the chips imported by Qualcomm and not handsets imported by non-parties. The ITC affirmed the ALJ’s finding of a viol ation of section 1337. However, the ITC did not adopt the ALJ’s recommended rem edy. Instead, the ITC issued a limited exclusion order excluding from entry not only chips import ed by Qualcomm, but also “[h]andheld wireless communications devices, including cellular telephone handsets and PDAs, containing Qualcomm baseband processor chips or chipsets that are programmed to enable the power saving features covered by clai ms 1, 4, 8, 9, or 11 of U.S. Patent No. 6,714, 983, wherein the chips or chip sets are manufactured abroad by or on behalf of Qualcomm Incorporated.” T he ITC carved out from the LEO existing models of handsets, allowing such models to continue to be import ed. The ITC also issued a cease and desist order. LG, Veriz on, Qualcomm, Samsung, Sprint, Motorola, AT&T, Kyocera, and T-Mobile appeal and seek a stay, pending appeal, of the LEO. In addition, Qualcomm seeks a stay, pending appeal, of the cease and desist order. We turn first to the ITC’s argument t hat the appeals should be dismissed for lack of jurisdiction. This court has jurisdiction to review “final determi nations of the United States International Trade Co mmission” pursuant to 28 U.S.C. § 1295(a)(6). Pursuant to 19 U.S.C. § 1337(j), if the IT C determines that there is a vi olation of section 1337, it is

2007-1392 et al. 5required to transmit its determination to t he President for review. If the President disapproves of the determination for policy reasons, then the ITC’s orders become void. 19 U.S.C. § 1337(j)(2). If t he President approves the ITC’s determination or fails to disapprove it within 60 days, t hen by statute the ITC determina tion becomes final at that time. 19 U.S.C. § 1337(j)(4). Thus, as a general rule, a party aggrieved by an ITC determination may not appeal until either the President approves of the determination or the 60-day review period ends. This court also has jurisdiction to review certain interlocutor y orders pursuant to 28 U.S.C. § 1292(c)(1). 4 The parties dispute whether the orders issued by the ITC – the LEO, cease and desist order, and order denying a stay of the LEO – are interlocutory orders made appeal able by that provision. First, we address the appellants’ argument t hat this court has jurisdiction to review the ITC’s June 21 or der denying a stay of the LEO pursuant to 28 U.S.C. § 1292(c)(1) and on that basis we hav e jurisdiction to grant a stay. 5 We determine that this argument is foreclosed by our decision in Shiley, Inc. v. Bentley Labs., Inc. , 782 F.2d 992 (Fed. Cir. 1998). In that case, Bentley appealed a district court decision denying a motion for a stay of an injunction. We stated “a denial of a stay of a post-trial

4 Section 1292(c)(1) states: (c) The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction -- (1) of an appeal from an interlocut ory order or decree described in subsection (a) or (b) of this section in any case over which the court would have jurisdiction of an appeal under section 1295 of this title . . . .

5 We note that it appears that only LG filed a supplem ental petition for review seeking review of the ITC’s June 21 order.

2007-1392 et al. 6injunction pending an appeal on the merits is neither a ‘final dec ision,’ 28 U.S.C. § 1295(a)(1), nor within this court’s jurisdiction over interlocutory orders as delineated in 28 U.S.C. § 1292(c).” Id . at 993 (emphasis in original). Thus, we lack jurisdiction to review the ITC’s June 21 order. To the extent t hat the appellants argue that they seek review of the June 21 order and on that basis we have jurisdiction to stay the LEO, that argument fails. Next, the ITC argues that the appeals must be dismissed because the LEO and cease and desist order are not appealable fi nal determinations until the 60-day Presidential review period set forth in 19 U.S.C. § 1337(j) has ended. The ITC further argues that these orders ar e not appealable as interlocut ory orders pursuant to 28 U.S.C. § 1292(c)(1) because the orders are not interlocutory; rather, pursuant to 19 U.S.C. § 1337(j)(3) 6 they are final for all purposes ex cept judicial review. The ITC argues that allowing an appeal before the end of t he Presidential review period would contravene the purpose of the del ay in judicial review prov ided by 19 U.S.C. § 1337(c). The ITC asserts that the 60- day Presidential review period “reflects a Congressional judgment that the Pres ident’s exercise of his discr etion should not be hampered by ongoing judicial proceedings concerning the matte r he is reviewing.” The ITC contends that section 1337(j)(3) allows entry of excluded products upon posting of a bond during the Presidential review period, thus providing a mechanism for obtaining interim relief during that period.

6 Section 1337(j)(3) states: (3) Subject to the provisions of par agraph (2), such determination shall, except for purposes of subsection (c) of this section, be effective upon publication in the Federal Register . . .

2007-1392 et al. 7The appellants argue that the LEO and cease and desist order are appealable pursuant to 28 U.S.C. § 1292( c)(1) and our decision in Electronic Data Systems Federal Corp. v. General Services Admin. Bd. of Contract Appeals , 792 F.2d 1569 (Fed. Cir. 1986). In Electronic Data Systems , this court determined that it had jurisdiction, pursuant to 28 U.S.C. § 1292(c)(1), to review an injunctive order from an administrative agency over which this court otherwise has appellate jurisdiction, even though there was no final decision by the agency. Electronic Data Systems , 792 F.2d at 1575 (“Injunctive orders from any tr ibunal within our exclusive appellate jurisdiction fall within the jurisdiction granted to this court by § 1292(c)(1)”). The appellants further argue that
in Jazz Photo Corp. v. United States Int’l Trade Comm’n , No. 99-1431 (Fed. Cir. July 6, 1999), we interpreted Electronic Data Systems as allowing this court to assert jurisdiction over an ITC determination dur ing the Presidential review period. We note that Jazz Photo Corp. is a nonprecedential order issued prior to January 1, 2007. Thus, Fed. Cir. R. 32.1 does not authorize its cita tion. Furthermore, pursuant to Fed. Cir. R. 32.1(d), this court “ma y look to a nonprecedential disposition for guidance or persuasive reasoni ng, but will not give one of its own nonprecedential dispositions the effect of binding preceden t.” Thus, this court’s disposition in Jazz Photo Corp. does not resolve the jurisdictional issue before us. We agree with the ITC t hat the LEO and cease and desist order are not appealable as final determinations pursuant to 28 U.S.C. § 1295(a)(6) during the Presidential review period. Further, we determine that these orders are also not appealable interlocutory orders pursuant to 28 U.S.C. § 1292(c )(1). Section 1337 provides that an ITC determinat ion does not become final for purposes of judicial review

2007-1392 et al. 8until the President has either approved of the determinat ion or failed to disapprove within 60 days. See 28 U.S.C. § 1337(j)(4); SSIH Equip. S.A. v. United States Int’l Trade Comm’n , 718 F.2d 365, 370 (Fed. Cir. 1983) (“Commission determinations are

not final for purposes of appeal to this court unt il the [Presidential] review period has run”) (emphasis in original). In other words, the statutor y scheme provides for initial review of ITC determinations, as well as exclusion and cease and desist orders, by the President and subsequent review by this court unless the President first disapproves of the determination. Thus, it is clear that Congress did not intend that an ITC determination would be before the Presi dent and this court simultaneously. The bonding provision in section 1337(j)(3 ), allowing entry of excluded products upon posting of a bond, further suggests that C ongress did not intend for this court to assert jurisdiction over ITC determinations and orders during the Pr esidential review period. The bonding provision permits parti es subject to exclusion and cease and desist orders to obtain interim relief wit hout appealing to this court during the Presidential review period. Indeed, as the ITC point s out, the statutory bonding provision, in effect, allows parties to obtain a stay without appealing to this court. In essence, the appellant s argue that they have th ree means of obtaining immediate relief from an ITC determinati on: Presidential disapproval of the determination, posting of a bond, and judicial review in this court. Because the statute explicitly provides the first tw o forms of relief but is silent with respect to the third, we determine that Congress did not intend to a llow it. We determine that the appellants’ remaining arguments in opposition to the moti on to dismiss lack meri t. Thus, we hold that we lack jurisdiction and dismiss.

2007-1392 et al. 9Because we dismiss, the motions to stay and all other motions are moot. Accordingly, IT IS ORDERED THAT: (1) The ITC's motion to dismiss is granted. (2) The motions for a stay, pending appeal, are moot. (3) The motions for leave to file briefs amicus curiae are moot. (4) Broadcom’s motion for leave to file new evidence in support of its opposition to the motions to stay is moot. (5) All sides shall bear their own costs. FOR THE COURT

July 20, 2007 /s/ Sharon Prost Date Sharon Prost Circuit Judge

2007-1392 et al. 102007-1392 et al. 11 cc: Marguerite E. Trossevin, Esq. Mark C. Hansen, Esq. Don F. Livornese, Esq. Michael J. McKeon, Esq. Russell E. Levine, Esq. Cecilia H. Gonzalez, Esq. Gregory Steven Arovas, Esq. Mark Stuart Zolno. Esq. Kathryn L. Clune, Esq. Josh A. Krevitt, Esq. Mark Stuart Zolno. Esq. Michael Liberman, Esq. Robert A. Van Nest, Esq. Avinash S. Lele, Esq. Richard L. Rainey, Esq. Paul M. Smith, Esq.

s17

ISSUED AS A MANDATE: ______________________________