Apple Import Ban Denial Makes Sense to Let Courts Review Patent Case

By Wayne Rash  |  Posted 2013-08-05 Print this article Print

Companies that hold standard-essential patents must agree to license their patents to all comers on a fair, reasonable and non-discriminatory (FRAND) basis. By doing so the patent holders get a certain amount of protection and recognition for their invention.

The Samsung patent was for 3G communications adopted as a global standard. Had Samsung not agreed to the FRAND basis of its standards-essential patent, then another type of 3G communications could have been chosen and Samsung would have lost out.

The real problem here is that Apple and Samsung couldn’t come to terms for a license on the Samsung patents. Samsung’s response was to basically go nuclear and blow up Apple’s ability to sell its products. Apple, of course, would like to avoid paying any licensing fees at all. It would seem that a middle ground to resolving this patent dispute is what makes sense. Samsung has every right to pursue its assertions of patent ownership in the courts.

But as you might expect, something with as many twists and turns as patent litigation can only mean one thing; there’s little if any agreement on what’s the best approach. This is part of the current level of patent chaos that exists in the United States and elsewhere these days. The fact that the USTR had to takes sides is the surest sign of all that things are spiraling out of control. There’s also little agreement that the USTR’s approach is the right one.

“The Administration’s unprecedented decision to veto an ITC ‘Section 337’ import ban against Apple for infringing Samsung’s intellectual property is a disruptive and potentially dangerous development that calls into question the fairness of our trading regime,” said Ed Black, president and CEO of the Computer and Communications Industry Association.

But the U.S. Patent and Trademark Office and the Department of Justice have had a policy in place since the beginning of the year that tries to limit what those departments call “undue leverage” in asserting standards-essential patents. That policy attempts to discourage price gouging by patent holders, especially if it’s discriminatory.

What this action reveals isn’t that the USTR is taking sides, but rather that assertion of a standards-essential patent shouldn’t result in a ban on a company’s business when other avenues are available. Right now, Samsung has other avenues, which that company is pursuing with great vigor. Banning Apple is at the very least premature. Letting the process continue through the courts only makes sense.


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