Linked by Thom Holwerda on Sat 3rd Aug 2013 20:34 UTC
Legal The Obama administration:

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.

Lots of talk about SEPs and FRAND in Obama's decree, which means that the Obama administration contradicts everything the ITC has said. To freshen your memory, the ITC ruled that not only was the patent in question not a standard essential patent, but Samsung's offer was actually proper FRAND:

Additionally, the Commission found that there were still disputed issues concerning the patent at issue was even actually essential to the standard (and therefore whether a FRAND or disclosure obligation applied at all).


The Commission analyzed the history of negotiations between Apple and Samsung (this portion is heavily redacted) to see if Apple showed that Samsung failed to negotiate “in good faith,” and found that Apple failed to do so. Notably, the Commission dismissed Apple’s arguments that (1) Samsung’s initial offer was so high as to show bad faith, and (2) Samsung’s attempts to get a cross-license to Apple’s non-SEPs violated its FRAND commitments.

In other words, the Obama administration threw out virtually everything the ITC has said in order to protect Apple. This effectively means that American companies can infringe on non-American companies' (standard essential) patents all they want, because the president will simply step in if they try to fight back.

So, I was wrong. I expected the Obama administration to be impartial and not give such a huge slap in the face of the ITC - as cynical as I usually am, I can still be naive. Protectionism is more important to the POTUS.

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RE: this was totally expected
by Tony Swash on Sun 4th Aug 2013 15:32 UTC in reply to "this was totally expected"
Tony Swash
Member since:

As I have argued before the whole issue of legal conflicts over IP and all the existing IP legal actions are trivial. They are trivial because in the real world they have had almost zero impact on any end user. Can anybody on this forum offer up a real world example of how they have been prevented from doing anything by any IP legal action?

The proposed ban on the iPhone 4 even if implemented would have been trivial as it will almost certainly cease to be available in a month or so when Apple updates it's line of handsets.

I was sorry to see Apple losing to Samsung in this case because looking at the track record of the two companies it is clear that Samsung has a long track record of copying the product designs of other companies and that it uses it's large footprint in the supply chain to acquire a huge amount of market intelligence and information about the plans of it's rivals, and that knowledge is used to facilitate very rapid product copying. Whether or not that strategy should ever be deemed to be illegal it is my view that it is a sleazy and that it comes from a company with a lot of sleaze in it's history.

As far as the issue of legal action in relation to SEP/FRAND patents are concerned I think that as a general principal no trade restraint or injunctive product blocking should occur until after a legal judgement. So no early injunctions in SEP cases no matter how long or protracted the SEP use negotiations are.

The details of the negotiations between Apple and Samsung are not public and I wish they were. I know that Thom is heavily in favour of the use of SEP patents to lever cross patenting. Apple have entered into cross patenting agreements with a number of companies such as Nokia, Microsoft and HTC and it is known that the latter two agreements included clauses to prevent the cloning or copying of Apple's products' using Apple licensed technology. I have no evidence about this but I wonder if this issue was a sticking point between Apple and Samsung. If licensing was discussed I cannot believe that Apple would not have raised concerns about product copying.

I really cannot understand the logic of Thom in all this. He claims a principled stand against all restrictive IP, all patents involving bits but not atoms, and all IP legals actions but then always seems to cheer for one side if the company being sued is Apple. There may be a coherent set of principals in there but I cannot work out what they are. I can understand opposing all technology IP but why then cheer in support for some legal actions and not others?

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