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 Tue 6th Aug 2013 11:24 UTC in reply to "RE: It's not that clear, Thom"
Member since:

As someone who doesn't speak "legalese". Yes, I think that is what it means. Actually, I think that is the whole point.

Well, consider this scenario.  Company S has a standard-essential patent, which it licenses to companies X, Y and Z (who're not competitors) for just money.  Company A, a competitor, requests a license.  Company S states it will not grant a license for just money to Company A, but will grant a license for money + a cross-license.

Does such a demand violate an obligation to grant a license on FRAND terms?  The ITC says it does not: FRAND, according to them, is compatible with making demands of one licensee that you don't of others, as long as the final outcome is commercially reasonable.  I personally find this problematic, because it seems to junk the 'non-discriminatory' bit of 'fair, reasonable and non-discriminatory.' 

If I understand standards and their processes around it, I would expect that before something is declared a standard, that the FRAND-status of all patents that cover it should be clear.

This is very literally impossible.  There is simply no way anyone can find out what patents cover a standard.  Standard setting organisations rely on their members disclosing all relevant patents, but (a) the obligation to do so is weak, particularly if the ITC's position in this case is upheld (b) third parties are free to assert claims.

Reply Parent Score: 2

Lennie Member since:

I guess the ITC has a different definition of fair than you do.

Yes, 3rd parties can obviously still assert claims.

Reply Parent Score: 2