Samsung lost its bid to get an import ban on smartphones that were found to infringe on Apple patent overturned. U.S. Trade Representative Michael Froman—a White House appointee—announced on Tuesday that he would allow the import ban to go into effect.
Apples and Oranges
Samsung had asked the White House to overturn the import ban, or exclusion order, because an exclusion order against some versions of Apple's iPhone 4 was overturned in August. As I covered in detail on Monday, the two cases were not at all similar, and U.S. Trade Representative Michael Froman said in a statement on Tuesday that the policy considerations that led to the Apple decision did not apply to Samsung.
"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 exclusion order to proceed," Mr. Froman said in a statement.
Nothing to See Here
As a refresher, Apple's import ban was based on the iPhone 4 infringing on Samsung standards-essential patents (SEPs), and the U.S. is actively concerned about companies like Samsung using SEPs to get import bans in order to get better licensing terms.
Samsung also tried to get a license for some of Apple's non-standards-essential patents as a condition for licensing the SEPs in question, a tactic that violated the spirit of fair, reasonable, and non-discriminatory licensing required (but not codified) by having a patent included in a standard.
Mr. Froman also stipulated that because newer Samsung devices already had workarounds in place for Apple's patents, competition in the U.S. would not be overly hurt by the exclusion order.
"The order expressly states that these devices and any other Samsung electronic media devices incorporating the approved design-around technologies are not covered," Mr. Froman said in the statement. "Thus, I do not believe that concerns with regard to enforcement related to the scope of the order, in this case, provide a policy basis for disapproving it."
In short, there is nothing much to see here, there is no connection to the policy concerns that led to Apple's exclusion order being overturned, and everyone should just move along.
Keep Singing That Song
That hasn't stopped Samsung from accusing the White House of playing favorites on behalf of the U.S. company—Apple—at the expense of Samsung, the foreign company.
For instance, Bloomberg reported that the Computer & Communications Industry Association—a trade group that counts Google and Samsung as members, but not Apple—said in a statement that, "[The veto of the Apple import ban] was based on political pressure and favoritism. It was not in keeping with the way the decisions are made."
In reality, the issue of using SEPs to get import bans has been an area of concern with the U.S. Trade Representative, the Federal Trade Commission, the Department of Justice, and Congress.
Mr. Froman's office has insisted that the nationality of companies does not play a role in his office's decision-making process.
Meanwhile, Samsung can pursue its grievances in the U.S. court system, though the company has not found success there, either. The U.S. Trade Representative's decision affects only this one case that was in front of the International Trade Commission.
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