White House refuses to veto Samsung ban
The Obama administration has declined to overturn an import ban on various Samsung products deemed to infringe two of Apple’s patents.
In August the International Trade Commission (ITC) banned some older Samsung smartphones and tablets, pending a 60-day review by President Barack Obama.
On behalf of Obama, US trade representative (USTR) Michael Froman on Tuesday approved the ITC exclusion order.
“After carefully weighing policy considerations, including the impact on consumers and competition, advice from agencies, and information from interested parties, I have decided to allow” the ban, Froman said in a statement.
In response, Samsung said it was “disappointed” by the decision and that “it will serve only to reduce competition and limit choice for the American consumer”. Apple said it had no comment.
Apple’s infringed patents are called “Touch screen device, method, and graphical user interface for determining commands by applying heuristics” and “Audio I/O headset plug and plug detection circuitry”.
The August ruling, which cleared Samsung of infringing two other patents, dated from a case filed in 2011.
Only days before the August decision, the US government vetoed an exclusion order against Apple products that infringed a standard essential patent (SEP) owned by Samsung. The veto was the first since 1987.
Christine Lehman, partner at Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, said the refusal to reverse the Samsung order is because the latest case did not deal with SEPs.
“They have got a lot of attention lately, and it’s a very hot issue whether the ITC can issue an order for SEPs, so the latest ruling was not unexpected,” she said.
Steve Auvil, partner at Squire Sanders LLP, added: “Over the history of Section 337, an exceedingly small number of exclusion orders have been vetoed by the president or USTR by delegation of authority. The veto of the exclusion order banning Apple products was unusual and reflected unique concerns of the USTR with regard to SEPs.
“It should not be read as a new trend that reflects favouritism of domestic IP holders over their foreign counterparts.”
Samsung was worried about the scope of the order and how it would be interpreted by US customs officials, but Froman noted that the Office of the Intellectual Property Enforcement Coordinator is already conducting a review on the procedures and practices used during the enforcement of exclusion orders.
Auvil continued: “Samsung has indicated that the exclusion order will affect only older model devices, but it seems concerned that Apple will seek to enforce the exclusion order against newer model devices as well, hence the concern about over breadth of the exclusion order.”
Lehman added that “it doesn’t look like the [negative] impact is going to be too great” on Samsung’s business.
Samsung retains the right to appeal to the US Court of Appeals for the Federal Circuit.
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