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[2]: It's not that clear, Thom
by oskeladden on Sun 4th Aug 2013 08:42 UTC in reply to "RE: It's not that clear, Thom"
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The ruling from ITC said the patents in question were not FRAND

Actually, it said nothing of that sort.  The ITC refused to decide the question of whether the patents were FRAND or not, on the basis that the parties hadn't led evidence before the judge at first instance on this question.  They said as much on pp. 50-51 of their decision (available at

and even though they were not FRAND, had been offered on FRAND terms by Samsun gto Apple. Apple had simply refused to negotiate.

 Again, it said nothing of that sort.  Apple and Samsung were negotiating quite extensively.  And it very specifically did not say that the terms that Samsung offered were FRAND.  It said, more than once, that offers did not have to be FRAND.  Samsung would, according to the ITC, have complied with its FRAND obligations even if every single offer it made was unreasonable, as long as the negotiations held out the possibility of ultimately coming to a final agreement that was reasonable.   The basis of its decision was that Samsung was not asking for anything that would have made a reasonable final agreement impossible.  See pages 60-62.

This is probably entirely correct on the facts, but its wider implications are potentially chilling. I don't hold a brief for Apple or Samsung.  I don't particularly care which of them wins, and I wouldn't be particularly bothered if either of them had their phones disappear from the market.  What I do care about is that the ITC's ruling guts the concept of FRAND.  This is all well and good when the target is a hated company like Apple, but these same principles will bite small upstart companies even harder.  Apple can always litigate their way around disputes: a small company without the money to engage in long and protracted negotiations cannot.  A series of unreasonable opening licensing offers will kill a small company  (as I have seen first hand, having acted for enough of them when I was in practice).  Which is why I find it troubling that the ITC seems to think ruthless conduct is compatible with a FRAND obligation.  To the extent that the DoJ tells the ITC to take a different approach to awarding injunctions in FRAND cases, it's a step in the right action, as it will make it harder for Motorola, Microsoft, Nokia, or some other such company to use standard-essential patents to kill - say - Jolla's phone, or the Ubuntu Phone or the Firefox Phone.  

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