Stay Pending Appeal: Denied for Qualcomm at ITC

USITCUS (Broadcom) v. Qualcomm (ITC 2007).

The International Trade Commission (ITC) is an increasingly popular venue for patent infringement issues. The ITC’s only power is to enjoin imports (no money damages), but in competitor suits that is the optimal result.

As part of a large ongoing patent battle, Broadcom filed a Section 337 action against Qualcomm — asserting that Qualcomm’s mobile-phone chip imports infringed Broadcom’s patent nos. 6,374,311, 6,714,983, and others. An administrative law judge (ALJ) sided with the patentee Broadcom, and the Commission affirmed (but limited the scope of injunction).

Qualcomm and its supporters requested that the ITC stay relief pending appeal to the CAFC. 

ITC Stays: Section 705 of the Administrative Procedure Act (APA) provides the ITC with authority for granting a stay. Generally, the ITC determines stays based on the same four factors used to determine whether to grant a preliminary injunction. (It is also approximately the same test used by the CAFC and discussed in Standard Havens).

In order to obtain a stay pending appeal, the moving party must prove:

  • (1) a likelihood of success on the merits of the appeal (or an “admittedly difficult legal question”);
  • (2) irreparable harm absent a stay;
  • (3) that issuance of a stay would not substantially harm other parties; and
  • (4) that the public interest favors a stay.

Here, the ITC determined (without reasoning) that Qualcomm had failed to satisfy the four-prong test.

The CAFC is expected to make an independent determination regarding the stay within the next week.


  • Two of the six commissioners would have granted a stay.