McNamara’s determination is a key step in an ongoing intellectual-property dispute between Motorola Solutions and Hytera Communications that became public last March.

On March 14, 2017, Motorola Solutions filed lawsuits against Hytera Communications, claiming that the China-based LMR manufacturer infringed on several Motorola Solutions patents in its development of digital DMR products that have claimed significant market share in the enterprise-communications space. Hytera gained access to the Motorola Solutions intellectual property in 2008, when it hired three former Motorola engineers who stole more than 7,000 computer files depicting the patented technologies prior to their resignation, according to Motorola’s lawsuit.

On March 29, 2017, Motorola Solutions filed a complaint regarding the alleged patent infringements with the ITC, which acts as an administrative body within the executive branch of the U.S. government.

With McNamara’s determination in place, the matter will be considered by the full U.S. International Trade Commission. ITC commissioners are expected to decide whether to review McNamara’s determination and/or make an alternative ruling—by Nov. 6.

If ITC commissioners decide not to review the determination, McNamara’s recommendation that Hytera be prohibited from importing and selling the identified DMR product would become the rule of law, subject to a potential presidential review by Trump. If the ITC commissioners do not review the case, the ruling could become effective much earlier than Nov. 6.

If ITC commissioners choose to review the case, they would consider McNamara’s recommendation and the evidence from the proceedings in the matter, but the commissioners are not bound by McNamara’s determination that Hytera should be prohibited from importing and/or selling products associated with the alleged patent infringement. ITC commissioners can reach a different finding than the administrative law judge, suggest a different remedy or return the case back to McNamara, according to multiple sources.

An ITC ruling that reverses McNamara’s findings would let Hytera Communications to continue selling its current product portfolio in the United States.

An ITC commission ruling against Hytera Communications that calls for the company to stop importing patent-infringing goods into the U.S. or being sold in the country typically would become effective with a few days of the ruling being announced.

Despite this effective date, the Hytera products theoretically could continue to be imported and sold in the U.S. during the 60-day presidential review. However, during this time, any sales could be subject to a bond—sometimes as much as 100% of the product’s value—that would be paid to the complainant, which is Motorola Solutions in this case. As a practical matter, such a bond often discourages the company that is being penalized from trying to sell infringing products in the U.S. during this time, according to a source familiar with ITC proceedings.

McNamara’s determination recommends the inclusion of such a bond, if the matter reaches the presidential-review stage.

Presidential reversal of an ITC commission ruling is rare, but Trump would have the right to do so, if he deemed it to be in the public interest. Some industry sources familiar with the situation have wondered whether the status of currently tense U.S.-China trade negotiations could impact considerations during a potential presidential review, but none of them indicated that they had any knowledge whether trade talks could be a factor in this case.

ITC commission rulings can be appealed to the Court of Appeals for the Federal Circuit, but the ban on patent-infringing goods usually remains in effect during the appeal process, unless the appeals court decides to grant a stay in the matter, according to a source familiar with ITC procedures.