The trade commission has opened an investigation into whether Apple's phones and watches infringe a Santa Monica company's contact-swapping patent, and the complainant wants them kept out of the country

The feature is the one where two phones touch and swap contact details. A company in Santa Monica says it owns it.

The International Trade Commission ordered on 27 August that an investigation be instituted on a complaint brought by GG Technologies, Inc., doing business as StayTouch, and the notice was filed with the Federal Register on Monday morning. It carries the number 337-TA-1520. There is one respondent: Apple Inc. of Cupertino.

What is being investigated

The complaint was filed on 28 July and amended on 14 August. It alleges violations of section 337 of the Tariff Act of 1930 through the importation into the United States, the sale for importation, and the sale after importation of certain mobile devices with hardware and software for exchanging electronic content, by reason of infringement of U.S. Patent No. 12,022,369. The Commission has instituted on claims 1 to 3 and 13 to 17 of that patent.

The scope is drawn tightly, and the Commission wrote the boundary itself under its plain language description rule: "mobile wireless devices (watches and phones) that can automatically initiate a contact information exchange when they are brought in the proximity of another, similarly-equipped, device."

Watches and phones. Both are named in the definition of what is accused.

The complaint asks for a limited exclusion order and a cease and desist order. That is a request to keep the covered articles out of the country and to stop their sale here. It is a request, not a finding, and no adjudicator has yet weighed it.

The 100 day clock

The interesting part of this notice is not the patent. It is the procedure.

The Commission directed the presiding Administrative Law Judge to hold an early evidentiary hearing, find facts, and issue a decision within 100 days of institution on one question only: whether the complainant has satisfied the economic prong of the domestic industry requirement. Section 337 is a trade statute before it is a patent statute, and it protects an industry in the United States. A complainant with a patent and no domestic industry has no case, whatever the patent says.

That early decision comes as an initial determination under Rule 210.42(a)(3), and it becomes the Commission's final determination 30 days after service unless the Commission decides to review it. The notice waives any Commission Rules to the contrary. One hundred days from 27 August is early December.

What has not happened

Apple has not responded, because on this record there has been nothing to respond to until now. Under the Commission's rules its answer to the amended complaint and the notice of investigation is due within 20 days of service, and the notice states that extensions will not be granted without good cause and that failure to file a timely response may be deemed a waiver of the right to appear and contest the allegations.

Every claim above is the complainant's, as the Commission recorded it. Nothing has been proved and nothing has been excluded. The Chief Administrative Law Judge has still to designate who will hear it.

This is the second complaint in three weeks to name Apple before this Commission. The other, Docket No. 3931 filed by BoomCloud 360 over audio technologies, named four proposed respondents and has not been instituted. Different patents, different complainant, different stage.