Big Daddy had to Save Little Apple

Date: 04-08-2013
Source: The Wall Street Journal
Subject: Obama Administration Vetoes Ban on Sale of Some Apple iPhones, iPads

Concern Cited Over Patent Holders Gaining ‘Undue Leverage’

The Obama administration on Saturday vetoed a U.S. trade body’s ban on the import and sale of some Apple Inc. iPhones and iPads, a rare move that upends a legal victory for smartphone rival Samsung Electronics Co.

U.S. Trade Representative Michael Froman made the decision to veto the ban on the Apple devices, citing concerns about patent holders gaining “undue leverage” as well as potential harm to consumers and competitive conditions in the U.S. economy.

He said Samsung could continue to pursue its patent rights through the courts.

The action marked the first time since 1987 that a presidential administration had vetoed an import ban ordered by the U.S. International Trade Commission.

The ITC in June had ordered the import ban and an accompanying cease-and-desist order affecting some older-model Apple iPhones and iPads after finding the products infringed a Samsung patent.

The ban raised concerns among U.S. antitrust enforcers and touched off intense lobbying of the Obama administration by technology companies with opposing positions on the issue.

Critics of the ITC order questioned whether companies should be able to block rival products in cases involving patents that have been deemed to be essential to creating products based on key technologies overseen by industry standard-setting groups.

Apple and some other technology companies argued to the trade representative that the ban was inappropriate because Samsung had committed to fairly license such “standard essential” patents associated with technology for wireless devices.

Samsung insisted it had offered to license its patents to Apple, but the Silicon Valley company had sought to avoid paying for licenses of Samsung’s patents.

The South Korean electronics giant and some U.S. technology companies disputed that their commitments to standard-setting bodies mean that patent holders can’t seek import bans or court injunctions in enforcing their intellectual property. They argued that a veto of the ITC order would upset decades of settled expectations, weaken the value of patents and discourage innovation.

“We applaud the Administration for standing up for innovation in this landmark case,” an Apple spokeswoman said in a statement. “Samsung was wrong to abuse the patent system in this way.”

A Samsung spokesman said the company was disappointed by the veto. “The ITC’s decision correctly recognized that Samsung has been negotiating in good faith and that Apple remains unwilling to take a license,” he said.

The veto concludes one of the most dramatic ITC cases in years. Apple’s loss in the case and the subsequent ban was seen as a blow to the company’s continued efforts to press cases against competitors it says have copied technology it developed for the iPhone and iPad.

Samsung, meanwhile, is scheduled to face a ruling by the ITC this Friday on whether some of its products infringe Apple patents and should be barred from import as a result. One person familiar with ITC proceedings said it might choose to delay that decision in the wake of the Obama administration’s move Saturday.

The ITC cases represent one set of fronts in a global patent war between Apple and Samsung, longtime technology partners that became bitter rivals after Apple introduced the iPhone in 2007 and Samsung later introduced products that contain similar features.

Apple launched a series of patent suits against Samsung, which responded by leveling infringement charges of its own.

The ITC order would have barred the U.S. sale or import of some Apple products still on store shelves, including a version of the iPad 2 made to work on AT&T Inc.’s network, and the iPhone4, which runs on AT&T and T-Mobile USA’s airwaves.

Mr. Froman, in a letter explaining the veto, said he came to his decision after extensive consultations with government trade bodies “as well as other interested agencies and persons.”

He said he also “strongly shares” concerns raised in a policy statement issued in January by the Justice Department and the U.S. Patent and Trademark Office, which said ITC product bans should rarely be allowed in cases involving standard-essential patents. Among other issues, the agencies discussed the possibility that holders of such patents could use them in ways that would unduly increase royalty rates they might receive for licenses.

DOJ officials were included during the trade representative’s review of the Apple ban. A Justice spokeswoman declined to comment.

The Federal Trade Commission, which shares antitrust authority with the Justice Department, has made similar arguments. The FTC in January reached a settlement with Google Inc. after alleging the company was misusing standard-essential patents it acquired from handset maker Motorola Mobility.

Date: 04-08-2013
Source: The Wall Street Journal
Subject: Obama Administration Vetoes Ban on Sale of Some Apple iPhones, iPads

Concern Cited Over Patent Holders Gaining ‘Undue Leverage’

The Obama administration on Saturday vetoed a U.S. trade body’s ban on the import and sale of some Apple Inc. iPhones and iPads, a rare move that upends a legal victory for smartphone rival Samsung Electronics Co.

U.S. Trade Representative Michael Froman made the decision to veto the ban on the Apple devices, citing concerns about patent holders gaining “undue leverage” as well as potential harm to consumers and competitive conditions in the U.S. economy.

He said Samsung could continue to pursue its patent rights through the courts.

The Obama administration on Saturday vetoed a U.S. trade body’s ban on the sale of some Apple iPhones and iPads.

The action marked the first time since 1987 that a presidential administration had vetoed an import ban ordered by the U.S. International Trade Commission.

The ITC in June had ordered the import ban and an accompanying cease-and-desist order affecting some older-model Apple iPhones and iPads after finding the products infringed a Samsung patent.

The ban raised concerns among U.S. antitrust enforcers and touched off intense lobbying of the Obama administration by technology companies with opposing positions on the issue.

Critics of the ITC order questioned whether companies should be able to block rival products in cases involving patents that have been deemed to be essential to creating products based on key technologies overseen by industry standard-setting groups.

Apple and some other technology companies argued to the trade representative that the ban was inappropriate because Samsung had committed to fairly license such “standard essential” patents associated with technology for wireless devices.

Samsung insisted it had offered to license its patents to Apple, but the Silicon Valley company had sought to avoid paying for licenses of Samsung’s patents.

The South Korean electronics giant and some U.S. technology companies disputed that their commitments to standard-setting bodies mean that patent holders can’t seek import bans or court injunctions in enforcing their intellectual property. They argued that a veto of the ITC order would upset decades of settled expectations, weaken the value of patents and discourage innovation.

“We applaud the Administration for standing up for innovation in this landmark case,” an Apple spokeswoman said in a statement. “Samsung was wrong to abuse the patent system in this way.”

A Samsung spokesman said the company was disappointed by the veto. “The ITC’s decision correctly recognized that Samsung has been negotiating in good faith and that Apple remains unwilling to take a license,” he said.

The veto concludes one of the most dramatic ITC cases in years. Apple’s loss in the case and the subsequent ban was seen as a blow to the company’s continued efforts to press cases against competitors it says have copied technology it developed for the iPhone and iPad.

Samsung, meanwhile, is scheduled to face a ruling by the ITC this Friday on whether some of its products infringe Apple patents and should be barred from import as a result. One person familiar with ITC proceedings said it might choose to delay that decision in the wake of the Obama administration’s move Saturday.

The ITC cases represent one set of fronts in a global patent war between Apple and Samsung, longtime technology partners that became bitter rivals after Apple introduced the iPhone in 2007 and Samsung later introduced products that contain similar features.

Apple launched a series of patent suits against Samsung, which responded by leveling infringement charges of its own.

The ITC order would have barred the U.S. sale or import of some Apple products still on store shelves, including a version of the iPad 2 made to work on AT&T Inc.’s network, and the iPhone4, which runs on AT&T and T-Mobile USA’s airwaves.

Mr. Froman, in a letter explaining the veto, said he came to his decision after extensive consultations with government trade bodies “as well as other interested agencies and persons.”

He said he also “strongly shares” concerns raised in a policy statement issued in January by the Justice Department and the U.S. Patent and Trademark Office, which said ITC product bans should rarely be allowed in cases involving standard-essential patents. Among other issues, the agencies discussed the possibility that holders of such patents could use them in ways that would unduly increase royalty rates they might receive for licenses.

DOJ officials were included during the trade representative’s review of the Apple ban. A Justice spokeswoman declined to comment.

The Federal Trade Commission, which shares antitrust authority with the Justice Department, has made similar arguments. The FTC in January reached a settlement with Google Inc. after alleging the company was misusing standard-essential patents it acquired from handset maker Motorola Mobility.

An FTC spokesman didn’t immediately respond to a request for comment.

Former FTC Chairman Jon Leibowitz, who led the agency during the Google case, said Saturday’s veto would benefit consumers and promote innovation.

“When a company agrees to license what is known as a standard-essential patent at fair and reasonable terms, it shouldn’t be able to ban importation of a product into the United States simply because it wants a better deal,” he said.

Susan Kohn Ross, a partner at the law firm Mitchell Silberberg & Knupp, said she was surprised the Obama administration stepped in on the case. Usually, such reviews turn on whether a patent in a case was really infringed, rather than concerns about the kinds of issues laid out in government policy statements.

Either way, this blow to Samsung likely won’t have much impact in the bargaining room with Apple, she said. ITC decisions typically don’t have as much of an impact in setting legal precedents as rulings in federal courts.

Samsung cannot appeal the veto, but it can continue to press its own court cases against Apple. “Does it in any way end the dispute? No,” Ms. Ross said.
An FTC spokesman didn’t immediately respond to a request for comment.

Former FTC Chairman Jon Leibowitz, who led the agency during the Google case, said Saturday’s veto would benefit consumers and promote innovation.

“When a company agrees to license what is known as a standard-essential patent at fair and reasonable terms, it shouldn’t be able to ban importation of a product into the United States simply because it wants a better deal,” he said.

Susan Kohn Ross, a partner at the law firm Mitchell Silberberg & Knupp, said she was surprised the Obama administration stepped in on the case. Usually, such reviews turn on whether a patent in a case was really infringed, rather than concerns about the kinds of issues laid out in government policy statements.

Either way, this blow to Samsung likely won’t have much impact in the bargaining room with Apple, she said. ITC decisions typically don’t have as much of an impact in setting legal precedents as rulings in federal courts.

Samsung cannot appeal the veto, but it can continue to press its own court cases against Apple. “Does it in any way end the dispute? No,” Ms. Ross said.

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