Last week, the International Trade Commission (International Trade Commission) decided to review the decision of the Administrative Law Judge (ALJ) in the Qualcomm v. Apple case at the International Trade Commission. Unfortunately, news reports have characterized this as Qualcomm persuading the International Trade Commission to review the initial decision, as if it were unusual.
It isn’t unusual at all. The Commission frequently reviews the decisions of the ALJs it supervises. In fact, according to a veteran International Trade Commission attorney I spoke with, the “majority, even the vast majority” of decisions are reviewed by the Commission. That remains the case even when the Commission ultimately decides not to make any changes to the ALJ’s initial determination.
The International Trade Commission often takes up review of cases and then upholds the ALJ’s decision—this isn’t like the Supreme Court, where there’s a bias towards reversal. In fact, one commentator reports an estimate that the Commission upholds 80 percent of all ALJ decisions.
It’s possible the International Trade Commission will disagree with ALJ Pender’s thoughtful decision. But there’s nothing unusual about the Commission taking up the review, and nothing that suggests they intend to change the underlying decision.