The latest development in the global patent war between Apple and Samsung took another dramatic turn last month. The International Trade Commission (ITC), set to ban imports of Apple's iPhone 4 for infringing Samsung's patents, was overruled by US Trade Representative Michael Froman, citing concerns about the dangers of holders of standards-essential patents (SEPs) gaining undue leverage over the market and the associated public interests.
In his letter to ITC chairperson Irving Williamson, Froman points favourably to a position statement the Department of Justice and the USPTO issued in January discussing the potential dangers of issuing injunctions based on SEPs with FRAND commitments. Noting that exclusion orders are sometimes proper, the position paper said that bans are inappropriate where it "appears to be incompatible" with its FRAND commitments, or where the patent holder is attempting to use an exclusion order to "reclaim some of its enhanced market power" over companies relying on the patent.
These considerations are reasonable, but one issue is that though Froman cites these concerns in his letter, he does not provide any analysis or facts showing or even necessarily arguing that Samsung was using its SEP patents inappropriately. This is particularly striking since he also states that "whether public interest considerations counsel against a particular exclusion order depends on the specific circumstances at issue".
This has bolstered accusations that the US is protecting one of its most valuable brands and by extension its own economic interests, a charge that it has levelled against countries such as India and China. South Korea has expressed "concerns" over US patent protection for its largest company. Korean newspaper Donga-Ilbo used stronger language, blasting the Obama administration for being "oblivious" to the dangers of trade protectionism.
Some defend the Obama administration's move, such as Bill Reinsch of US lobbying group National Foreign Trade Council, who argued that in this matter, "the US has employed an extensive legal process, and Samsung can continue to pursue the matter in court". Such an argument is consistent with the US position that rule of law is paramount there, a point that it often makes when criticising China. Yet, defenders of India's much criticised patent regime can make the exact same argument by pointing to statutes and court decisions justifying its compulsory licensing and patent revocations. Without more explanation than that the ban against Apple was overturned only after having "reviewed various policy considerations" and "extensive consultations", the rule of law argument sounds a bit hollow.
Peter Leung
Asia reporter
Managing IP
