NOTE: This order is nonprecedential.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, 

and 
SPRINT NEXTEL CORPORATION, 

 Appellant, 

and 

MOTOROLA, INC., 

 Appellant, 

and 

AT&T MOBILITY LLC (formerly known 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. 2
Before 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), Qualcomm Incorporated, Samsung Electronics 

Corporation, Ltd., Sprint Nextel Corporation, Motorola, Inc., AT&T Mobility LLC, Kyocera 

Wireless Corporation, and T-Mobile USA, Inc. each move for a stay, pending appeal, of 

the limited exclusion order (LEO) issued by the International Trade Commission (ITC) 

on June 7, 2007. The ITC and Broadcom Corporation each oppose. Verizon and 

Qualcomm each reply. The ITC moves to dismiss the appeals for lack of jurisdiction. 

Verizon, Qualcomm, AT&T, Sprint, and LG each oppose, and Samsung and Motorola 

file a joint opposition. Kyocera joins the oppositions filed 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 Association of Chiefs of Police, the International 

Association of Fire Chiefs, the National Emergency Number Association, and the 

National Public Safety Telecommunications Council move for leave to file a brief amicus 

curiae. The ITC opposes. CTIA-The Wireless Association, the United States Telecom 

Association, PCIA-The Wireless Infrastructure Association, UTStarcom, Inc., 

Bridgewater Systems Inc., Crown Castle International Corp., Infospace, American 

Tower Corporation, Syniverse Technologies, 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 evidence in support of its opposition to the 

2007-1392 et al. 3
motions to stay. Broadcom states that LG and Kyocera oppose and the ITC does not 

oppose. Qualcomm responds. Verizon opposes Broadcom’s motion. Samsung joins 

the opposition filed by Verizon. 

Broadcom owns a patent disclosing, inter alia, a power saving technique for 

wireless devices. Qualcomm contracts with third parties for the manufacture and sale of 

baseband processor chips1 outside of the United States. The chips are then 

incorporated into wireless handsets and other devices at facilities outside of the United 

States. LG, Samsung, Motorola, and Kyocera each purchase Qualcomm chips and 

incorporate them into devices outside the United States, 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 Qualcomm 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 Administrative Law Judge (ALJ) bifurcated the 

proceedings into two phases, liability and remedy. LG, Verizon, Qualcomm, Samsung, 

Sprint, Motorola, and Kyocera were not involved 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 intervene 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. 4
In the liability phase, the ALJ found that Qualcomm’s chips, when programmed to 

enable power saving features, infringe one of Broadcom’s patents. With respect to 

remedy, Broadcom sought exclusion 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 exclude only the chips imported by Qualcomm 

and not handsets imported by non-parties. 

The ITC affirmed the ALJ’s finding of a violation of section 1337. However, the 

ITC did not adopt the ALJ’s recommended remedy. Instead, the ITC issued a limited 

exclusion order excluding from entry not only chips imported 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 claims 1, 4, 8, 9, or 11 of 

U.S. Patent No. 6,714,983, wherein the chips or chipsets are manufactured abroad by 

or on behalf of Qualcomm Incorporated.” The ITC carved out from the LEO existing 

models of handsets, allowing such models to continue to be imported. The ITC also 

issued a cease and desist order. LG, Verizon, 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 that the appeals should be dismissed for lack 

of jurisdiction. This court has jurisdiction to review “final determinations of the United 

States International Trade Commission” pursuant to 28 U.S.C. § 1295(a)(6). Pursuant 

to 19 U.S.C. § 1337(j), if the ITC determines that there is a violation of section 1337, it is 

2007-1392 et al. 5
required to transmit its determination to the 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 the President approves the ITC’s determination or fails to 

disapprove it within 60 days, then by statute the ITC determination 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 interlocutory 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 appealable by that provision. 

First, we address the appellants’ argument that this court has jurisdiction to 

review the ITC’s June 21 order denying a stay of the LEO pursuant to 28 U.S.C. 

§ 1292(c)(1) and on that basis we have 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 interlocutory 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 supplemental petition for 

review seeking review of the ITC’s June 21 order. 

2007-1392 et al. 6
injunction pending an appeal on the merits is neither a ‘final decision,’ 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 that 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 final 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 are not appealable as interlocutory 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 except judicial review. The ITC 

argues that allowing an appeal before the end of the Presidential review period would 

contravene the purpose of the delay in judicial review provided by 19 U.S.C. § 1337(c). 

The ITC asserts that the 60-day Presidential review period “reflects a Congressional 

judgment that the President’s exercise of his discretion should not be hampered by 

ongoing judicial proceedings concerning the matter 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 paragraph (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. 7
The 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 tribunal 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 during 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 citation. Furthermore, pursuant 

to Fed. Cir. R. 32.1(d), this court “may look to a nonprecedential disposition for 

guidance or persuasive reasoning, but will not give one of its own nonprecedential 

dispositions the effect of binding precedent.” Thus, this court’s disposition in Jazz Photo 

Corp. does not resolve the jurisdictional issue before us. 

We agree with the ITC that 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 determination does not become final for purposes of judicial review 

2007-1392 et al. 8
until the President has either approved of the determination 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 until the [Presidential] review period has 

run”) (emphasis in original). In other words, the statutory 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 President 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 Congress did not intend for this court to 

assert jurisdiction over ITC determinations and orders during the Presidential review 

period. The bonding provision permits parties subject to exclusion and cease and 

desist orders to obtain interim relief without appealing to this court during the 

Presidential review period. Indeed, as the ITC points out, the statutory bonding 

provision, in effect, allows parties to obtain a stay without appealing to this court. 

In essence, the appellants argue that they have three means of obtaining 

immediate relief from an ITC determination: Presidential disapproval of the 

determination, posting of a bond, and judicial review in this court. Because the statute 

explicitly provides the first two forms of relief but is silent with respect to the third, we 

determine that Congress did not intend to allow it. We determine that the appellants’ 

remaining arguments in opposition to the motion to dismiss lack merit. Thus, we hold 

that we lack jurisdiction and dismiss. 

2007-1392 et al. 9
Because 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. 10
2007-1392 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: ______________________________