Sonos Makes One Last Call for ITC Google Ban; Google Urges Leniency
Sonos supports the recommendations of Chief Administrative Law Judge Charles Bullock at the International Trade Commission to slap Google with a cease and desist order, preventing it from circumventing the judge’s recommended import ban on smart speakers and other devices that he found to infringe five Sonos multiroom audio patents, said Sonos in redacted Dec. 2 comments (login required) newly posted Monday in docket 337-TA-1191. Google responded in its own redacted comments (login required) that the ITC should reject Bullock’s call for “sweeping remedial orders” that would deprive U.S. consumers of its “cutting-edge and life-enhancing household products.”
The ITC customarily issues cease and desist orders when a defendant maintains “commercially significant inventories” in the U.S. of goods found to violate Section 337 of the Tariff Act “or has significant domestic operations that could undercut the remedy provided by an exclusion order,” as Google does, said Sonos. No “tailoring” of the standard cease and desist order is necessary because products “actually determined to be non-infringing are already, by definition, not covered” by the order, it said.
Sonos also backs Bullock’s recommendation to impose a 100% bond on any infringing product Google imports or sells during the 60-day executive branch review of the final ITC determination in the case. The ITC scheduled a final decision for Jan. 6. The Office of the U.S. Trade Representative would have until early March to endorse or reject the ITC’s final determination, or take no action. The companies’ dual filings were their last chance to state their case before the commission closes the books on the nearly two-year-old investigation (see 2002060070).
Bullock said Google’s continued import of infringing goods during the 60-day USTR review period “would injure Sonos,” said Sonos. Google promotes the infringing features of its accused devices, putting them “into direct competition with Sonos products,” it said. Google uses its vast “ecosystem” to control “directly competitive speakers,” contributing to its “continued expansion,” said Sonos. “Google then leverages that ecosystem -- along with its subsidized sales of less expensive speakers -- to take customers away from Sonos.”
The recommended remedial orders would “far exceed the scope” of the asserted Sonos patents, said Google. The patents are “limited to very minor and specific software audio playback features in wireless audio systems,” it said. Audio playback, on the contrary, “is simply one feature out of thousands of features” in each Google device found in violation of Section 337, it said. Banning the U.S. import of Google devices “would cause immeasurable disruption throughout homes, communities, and establishments.”
Sonos seeks to use the ITC’s “injunctive authority solely for its own gain at significant harm to the public,” said Google. The commission “should not allow Sonos to do so,” it said. “Sonos' requested orders are excessively broad and would considerably harm U.S. consumers by depriving them of a wide array of household products despite Sonos accusing of infringement only a tiny, inconsequential fraction of the features in those products.”
The ITC should also reject Bullock’s recommended bond because Sonos “failed to provide adequate evidence to support the need for any bond,” said Google. The 100% bond rate is “so high” it may prevent Google from importing any products during the 60-day USTR review period, it said. “No bond is necessary to protect Sonos from injury,” it said, but if the commission disagrees, it should impose a bond that’s “commensurate with commercial realities, not import preclusive,” said Google.