New developments in the ongoing Motorola and Microsoft slap fight: Judge David P. Shaw of the International Trade Commission recommended on Wednesday that the Xbox 360 be banned from sale in the United States because technology used in the box infringes on patents held by Motorola.

Shaw ruled in favor of Motorola following an ITC hearing in April, finding that Microsoft had infringed on five patents related to video encoding held by Motorola. Microsoft claims the technology owned by Motorola is considered standardized and the Google-owned mobile phone maker’s FRAND commitments dictate that Microsoft should be able to license the tech at reasonable rates. Motorola in turn claims that Microsoft is full of baloney and it’s owed a royalty rate of 2.25 percent, an annual fee of around $4 billion for Microsoft.

According to PC Magazine, the judge believes Microsoft should cough up the cash and, until it does, the Xbox 360 should be banned from entering the U.S. or being sold in stores. Microsoft in turn claims that banning the Xbox 360 from shelves wouldn’t be in the public’s best interests. Shaw says that the PlayStation 3 and Wii will pick up the slack.

“[Microsoft’s] argument is not persuasive,” says Shaw, “It has not been alleged or shown that Sony or Nintendo would fail to meet the demand for consumer video gaming consoles in the event that an exclusion order [was] issued.”

A six-member commission will determine by August whether or not an exclusion order will be necessary. Until then, the Xbox will remain available.