Phone chip maker Qualcomm is running out of time and options since its appeal of the International Trade Commission’s ban was dismissed on July 20. The Court of Appeals for the Federal Circuit said that it did not have jurisdiction to review the ITC’s June 7 order.
Last month, Smith Brittingham of Finnegan pointed out that Qualcomm’s move for an appeal, which it filed alongside its major cell phone company customers, was largely a strategic one in that it would allow them to seek a stay pending the appeal. “If they can’t get a stay, then they probably can’t afford to wait for the Federal Circuit to rule on the merits of the case," Brittingham said, pointing out that by the end of the appeals process the phones in question would be obsolete anyway. And since the Federal Circuit, according to Brittingham, had little history of staying ITC exclusion orders pending appeal, Qualcomm might, he said, ask for a brief emergency stay pending the decision on the longer stay. That very brief stay, Brittingham said, might be a more likely outcome.
The company is still hoping for intervention from the president, who has sixty days from June 7 to veto the ITC’s order. But Brittingham called that measure “an uphill battle” for Qualcomm, “despite the publicity they’re getting.”