On April 4, 2011, Chief ALJ Paul J. Luckern issued Order No. 35 in Certain Electronic Imaging Devices (Inv. No. 337-TA-726).  In the Order, ALJ Luckern granted joint motions filed by Complainant Flashpoint Technology, Inc. (“Flashpoint”) and Respondents Nokia Corp. and Nokia Inc. (collectively, “Nokia”) and by Flashpoint and Respondents Research in Motion Limited and Research in Motion Corporation (collectively, “RIM”) to terminate the investigation as to the Nokia and RIM Respondents based on settlement and license agreements.

According to the Order, non-settling Respondents HTC Corporation and HTC America, Inc. (collectively “HTC”) and LG Electronic, Inc., LG Electronics U.S.A., Inc., and LG Electronics MobileComm U.S.A. (collectively “LG”) opposed requests by Flashpoint, Nokia and RIM to keep the “Settlement and Licensing Agreements” confidential between the parties to those agreements by redacting sections relating to Licensed Products and License Fees, because those sections were alleged to be highly relevant to matters of bonding, non-infringement and the public interest that are still in the Investigation.  These non-settling Respondents requested unredacted versions of the settlement/license agreements pursuant to the Protective Order in this investigation and thereafter be afforded an opportunity to comment on its impact on the public interest. 

FlashPoint, supported by the Commission Investigative Staff, opposed these requests for unredacted copies of the settlement/license agreements, arguing that none of the redacted information of said agreements is germane to any issues in genuine dispute in this investigation, and the harm caused to FlashPoint by requiring disclosure of the confidential terms of said agreements outweighs any need by non-settling respondents to have the information.  Flashpoint added that settlement discussions are scheduled to occur between FlashPoint and the non-settling Respondents, and because litigation counsel will likely advise the non-settling Respondents as to settlement, the disclosure of the confidential terms is particularly inappropriate.

After reviewing the confidential and non-confidential versions of the RIM and Nokia settlement agreements, ALJ Luckern determined that none of these agreements implicate the public interest, and none of the redacted terms therein are relevant to any non-infringement or other affirmative defense raised by HTC or LG in this Investigation.  With respect to the issue of bonding, ALJ Luckern determined that Flashpoint had not argued for a bond amount based on a reasonable royalty rate, and the non-settling Respondents and Commission Investigative Staff argued that the Commission should decline to set any bond amount.  Based on the above, ALJ Luckern granted the joint motions filed by Flashpoint and RIM, and Flashpoint and Nokia.