Surprise: Obama's New US Trade Rep Overturns ITC, Stops Ban On Apple Products
from the well-that's-interesting dept
For years, we’ve been watching how patent holders get two cracks at the proverbial (and, in this case, literal) Apple when it comes to patents. They can sue in court for patent infringement and — in an entirely separate process — they can go to the International Trade Commission, and argue their case as well. The regular courts and ITC judges use different criteria for judging the outcome, and also have different remedies (though with some overlap). The ITC can’t award monetary damages, but can issue an injunction, barring the importation of infringing products. Over the past few years, the ITC side of things has troubled a growing number of people, and even President Obama targeted some of the problems with the ITC patent review process in his big announcement on fixing the patent system.
Still, in a somewhat surprising move, Obama’s recently appointed US Trade Rep., Michael Froman, has stepped in to directly overturn an ITC injunction issued against Apple products — including iPhones and iPads, after the ITC sided with Samsung, saying that those devices violated Samsung’s patents. The decision by Froman is final — Samsung can’t appeal, and it means that those iPhones and iPads won’t get blocked at customs, as would likely have happened otherwise. You can read Froman’s letter about this, in which he delves into some detail about the administration’s worries about “patent hold up” — mainly on standards-essential patents (SEPs) that have so-called FRAND (fair, reasonable and non-discriminatory) licensing commitments. As the letter notes:
After extensive consultations with the agencies of the Trade Policy Staff Committee and the Trade Policy Review Group, as well as other interested agencies and persons, I have decided to disapprove the USITC’s determination to issue an exclusion order and cease and desist order in this investigation. This decision is based on my review of the various policy considerations discussed above as they relate to the effect on competitive conditions in the U.S. economy and the effect on U.S. consumers.
I would like to underscore that in any future cases involving SEPS that are subject to voluntary FRAND commitments, the Commission should be certain to (1) to examine thoroughly and carefully on its own initiative the public interest issues presented both at the outset of its proceeding and when determining whether a particular remedy is in the public interest and (2) seek proactively to have the parties develop a comprehensive factual record related to these issues in the proceedings before the Administrative Law Judge and during the formal remedy phase of the investigation before the Commission, including information on the standards- essential nature of the patent at issue if contested by the patent holder and the presence or absence of patent hold-up or reverse hold-up. In addition, the Commission should make explicit findings on these issues to the maximum extent possible. I will look for these elements in any future decisions involving FRAND-encumbered SEPs that are presented for policy review. The Commission is well-positioned to consider these issues in its public interest determinations.
He also notes that Samsung can continue its fight in the courts.
This is still something of a surprising move — more or less having the administration step in and flat out overrule a patent infringement ruling for “public policy reasons.” Hopefully, this signals a bit of a change in understanding under the new USTR, such that there’s a real recognition that overaggressive intellectual property laws and enforcement can have a seriously negative impact. Of course, the more cynical among you might note that this is also the US government stepping in to protect the US company (Apple) against a foreign company (Samsung). An even more cynical group might further note that the Obama administration also probably didn’t want to deal with the headache of headlines about how the federal government had suddenly banned a bunch of iPhones and iPads… But, for the sake of being optimistic, let’s hope that this really is a sign of a more thoughtful USTR, which isn’t quite as wedded to intellectual property maximalism, as its predecessors have been.