U.S. International Trade Commission Likely To Play Role In EMC, Hitachi Dispute


A former official with the U.S. International Trade Commission (ITC) said EMC's complaint against archrival Hitachi is one the ITC is likely to take up, starting a process that could in the next 12 to 18 months decide whether Hitachi can continue importing its storage arrays and software.

Last Thursday, EMC filed two complaints against Hitachi regarding alleged infringements of patents related to its storage management software products.

In the first instance, EMC sued Hitachi Data Systems and parent company Hitachi Ltd. in the U.S. District Court of Massachusetts for infringing on six patents related to storage management software and data migration and the storage of mainframe data.

In the second instance, EMC filed a complaint with the ITC to prevent Hitachi from importing into the U.S. products that use the six patents.

Ronald Cass, Dean of the Boston University School of Law and former vice chairman of the ITC, said the ITC is almost certain to take a case like this because it fulfills two requirements: there is an allegation of patent infringement and the alleged infringement is related to products imported into the United States.

Should the ITC decide to not take the case, it would end at that point, said Cass, who left the ITC in 1990. "But given what is being alleged here, it will quite likely go forward," he said.

If, as expected, the ITC takes the case, the Massachusetts District Court would likely put EMC's Hitachi lawsuit on hold until the ITC case is decided, said Cass.

Cass said the ITC has more familiarity with patents and patent-infringement issues than district courts. "The ITC has administrative law judges, people who know the law in regard to patents," he said. "They will sit in judgement on whether the patents are infringed on or not. They then will make recommendations to the ITC commissioners, who will adopt or modify the recommendations."

For the purpose of patent litigations, the ITC acts like a federal district court, said Cass. Therefore, should Hitachi decide to appeal a decision against the company, it could appeal to the U.S. Court of Appeals. However, in such a case the appeal would probably first go the the president of the United States, who would examine it for foreign policy or national security considerations, Cass said.

One possible outcome of the ITC case, should it go against Hitachi, could be an exclusion order for Hitachi to stop importing products with technology found to be infringing on EMC's patents, Cass said.

Even before the conclusion of the case, EMC could ask the ITC to issue a temporary exclusion order preventing Hitachi from importing those products, said Cass. In this instance, the ITC would have three months in which to agree to such a temporary exclusion. Should that happen, EMC would have to put up a sum of money that would be paid to Hitachi should the ITC rule against EMC, he said.

Assuming the ITC agrees to accept EMC's complaint, the case would typically take 12 to 18 months to settle, Cass said. "The ITC tends to have smaller backlogs than other courts," he said. "I'm not sure how long it would take. But the law requires the ITC move along as quickly as it can. . . . But it would not go on like the Microsoft or IBM or AT&T cases. That's part of the attraction for companies with patent claims."