Apple Tries to Get USTR to Undo the ITC's Injunction Against It - More FRAND Arguments ~pj

As you know, the ITC early in June ordered an injunction and a cease and desist order against some of Apple's products, on a complaint from Samsung that Apple was refusing to pay anything at all for a FRAND patent of Samsung's. The shock waves from that were heard throughout the patent universe. And now Apple is trying to block it from happening. Both Apple and Samsung have filed written submissions with the USTR, as The Essential Patent Blog reports. The President of the United States can undo that ITC injunction order based on the public interest, and Apple is asking the Office of the United States Trade Representative, as the President's representative in such matters, to do exactly that:

If left standing, the ITC determination permitting Samsung to use a single FRAND-committed patent to exclude Apple products from the United States marketplace will set a dangerous precedent and would undermine U.S. foreign relations by upsetting the international consensus against FRAND abuse. Further, the order is plainly inconsistent with recently stated Administration policy and contrary to statements of the agencies charged with enforcing competition policy. The order threatens to harm consumers and slow the pace of technological innovation, and will cement the ITC as the SEP-holders litigation venue of choice: it will be dramatically easier to get extraordinary relief at the ITC than in district court.

And it will make baby Jesus cry. I'm sure. This is the company that wanted Samsung to be blocked from the market for a slide-to-unlock patent. What the above left out is that if the ITC ruling stands, it will upset Apple and Microsoft's campaign to make FRAND patents worthless, so they can wipe the floor with Android, thanks to all the valuable utility patents the two are aiming and will aim at Google, while Google has limited defenses. And that strategy was going so well, too. Now? The apple cart has indeed been upset.

Samsung's position is simply this: Apple said publicly it thinks it shouldn't have to pay *anything* for the Samsung patent, and that is why the ITC found this case to be one of reverse hold-up:

Instead, in a recent brief to the Commission, Apple publicly declared that "Apple should not have to pay any royalty at all" for a license including the '348 patent. Apple's Submission in Response to the Commission's Request for Additional Written Submissions on Remedy and the Public Interest at 49 (April 3, 2013). By any definition, Apple is an unwilling licensee of Samsung's declared essential patents.

Everyone has been lecturing the courts and the world about the dangers of FRAND hold-up by patent owners, but sometimes, Samsung points out, there comes along a company that follows a deliberate policy of refusing to pay, and when that happens, an injunction is exactly the right remedy for reverse patent hold-up, even when the patent is a standard essential patent. Besides, the affected Apple products aren't made in the USA and it's such a limited exclusion, it will have limited impact on the public, and there are plenty of other products to fill the gap, including others of Apple's.