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Apple's ITC Presidential Pardon v. The ITC's Opinion ~pj - Updated 2Xs
Tuesday, August 06 2013 @ 03:21 PM EDT

Samsung had already appealed [PDF] the portion of the ITC Opinion that denied it relief against Apple regarding the mainly non-FRAND patents the ITC ruled Apple did not infringe, and in connection with that appeal, we find the complete public version of the ITC Opinion [PDF] that the President just overruled attached as an exhibit. It's long, 162 pages because there is an appendix bundled in that same PDF, but I want to show you a few excerpts from the opinion that I hope will demonstrate to you, as they do me, that Apple's pardon was not based on Apple being the good guy in this picture. The ITC found otherwise on the facts in the record. In fact, the ITC specifically states in the opinion that Apple failed to prove that Samsung had violated any FRAND obligation.

The pardon, therefore, couldn't have been due to concern about patent hold-up, as was stated [PDF], since the ITC specifically found that Samsung had negotiated with Apple in good faith, had already licensed the '348 patent to over 30 companies, and that it was, in fact, Apple that illustrated the danger of reverse hold-up. Further, the opinion stated, Apple not only failed to prove that Samsung violated any FRAND obligation, it failed to establish even what they are. Further, Apple conceded in its ITC briefing that FRAND patent holders are not barred from seeking injunctions, and in fact since Apple argued to the ITC that the '348 patent was not really essential, this would mean that Samsung had no FRAND obligations, due to the wording of the ETSI terms.

So, it was a bit like the papal special dispensations of history, where the law said X, but you are let off the hook from having to keep it. That makes Apple's reported public response particularly offensive, when it said, "Samsung was wrong to abuse the patent system in this way." Samsung didn't abuse the patent system. It was, as you will see, exactly the opposite, according to the ITC Opinion. And while the President can do whatever he wishes regarding public policy, the ITC followed the statute, since it has no policy powers. In short, one unavoidably must conclude that if Samsung had been the US company and Apple the Korean one, there would have been no pardon. That's the bottom line, I'm afraid. As Jamie Love tweeted, "What Froman and USTR will now have to explain is why India and other countries can't also consider public interest in patent cases." As I'll show you, one of the things the ITC considered was public comments warning that changing the terms for FRAND patent owners would make sweeping changes to trade laws, and Korea has already registered its concerns. I'm all for reforming the patent system, as you know, but if you want to reform it, how about making it *more* fair, not less? Playing favorites based on country of origin doesn't aim for that noble goal. It's indisputable that this has harmed Samsung, and since the ITC, which examined the facts in detail, found it was the innocent party in this picture, what can be the justification for Apple's comment?

Jump To Comments

Update, Update 2

Samsung argued to the ITC that the problem of reverse hold-up was that infringers can thwart patent owners from remedies that are meaningful simply by stating that they don't think the offer was FRAND. What is reverse hold-up? The opinion explained:

Apple also criticizes Samsung for tying some of its license offers to the settlement of litigation. We find Apple's argument to be somewhat hypocritical. The following sentence from Apple's submission to the Commission on April 10, 2013, indicates that Apple has no intention of paying Samsung any royalties until after the conclusion of litigation:
If the Commission were to determine that the '348 patent is valid, infringed, and enforceable -- and it should not for all the reasons the ALJ found and Apple previously briefed -- and if that judgment were affirmed on appeal, Apple would stand ready to pay FRAND royalties.
Resp. Apple Inc.'s Reply Submission at 20 (April 10, 2013) (public version April 12, 2013).

Apple's position illustrates the potential problem of so-called reverse patent hold-up, a concern identified in many of the public comments received by the Commission.20 In reverse patent hold-up, an implementer utilizes declared-essential technology without compensation to the patent owner under the guise that the patent's owner's offers to license were not fair or reasonable. The patent owner is therefore forced to defend its rights through expensive litigation. In the meantime, the patent owner is deprived of the exclusionary remedy that should normally flow when a party refuses to pay for the use of a patented invention….

Samsung can hardly be accused of patent hold-up when it has licensed its declared-essential patents -- including the '348 and '644 patents -- to more than 30 companies.

20 Commissioner Aranoff does not join this paragraph.

That is, of course, what the presidential pardon effectuated, purportedly based on the danger of FRAND patent hold-up. The actual danger of hold-up, the ITC found on the record, was theoretical, not actual, and while it might occur in the wild somewhere someday, Samsung wasn't guilty of it:
Apple and some public commenters have also argued that issuing a remedy for a patent owner that has breached its FRAND obligation would result in patent hold-up, undermine SSOs, and thereby harm competitive conditions in the U.S. economy and U.S. consumers. Whatever the merits of such arguments, they are inapt to the facts of this investigation. As we have determined above, Apple has not proved that Samsung violated a FRAND obligation, and Samsung has widely licensed the '348 patent. We need not decide here whether some future investigation showing evidence of patent hold-up or of harm to SSOs would require a different analysis.23

23 Commissioner Aranoff observes that, as summarized herein, many commenters assert that issuing an exclusion order (or any form of injunctive relief) based on infringement of a FRAND encumbered patent enhances the patentee's ability to engage in hold-up, which in turn would make patent owners reluctant to participate in SSOs, ultimately reducing interoperability, innovation, and consumer choice. Other commenters argue the opposite: that denying owners of FRAND encumbered patents access to injunctive remedies gives implementers the incentive to engage in so-called reverse hold-up, with similarly adverse effects on SSOs, interoperability, innovation, and consumer choice. With very limited exceptions, none of the parties or commenters submitted any evidence that either result has actually occurred in the market. See, 1442:16 (Walker). Absent empirical evidence of actual harm to consumers or innovation, what remains are policy arguments that the risk of hold-up occurring is sufficiently great to warrant denying an exclusion order to Samsung in this investigation. The Commission is not a policy-making body and is not empowered to make that decision. The parties are free to raise these arguments to the President during the 60-day review period. The President may, should he so choose, weigh the relative risks of hold-up and reverse hold-up in deciding whether to disapprove the remedy the Commission is issuing today.

Apple conceded, by the way, to the ITC that the standard body ETSI, which is the body that the Samsung '348 patent was donated to and comes within its terms, does not bar seeking injunctions: "Apple's own briefing admits the ETSI IPR Policy does not expressly forbid injunctions." In fact, the order states that one Apple witness testified that there have been several attempts to introduce such language into the ETSI IPR Policy, prohibiting patent owners from seeking injunctive relief for FRAND patents, but all such attempts have failed. That's on page 47 of the order, page 50 of the PDF. And Qualcomm, in its public comments -- and all of the public comments submitted are summarized by the ITC beginning on page A17, page 139 of the PDF -- explained that ETSI members "have consistently rejected attempts to curtail the ability of FRAND declarants to seek injunctive relief." So the order concludes, based on the record, that it couldn't accept Apple's argument that the infringement of a declared-essential patent can't be a violation of section 337.

But what if the Seattle judge, Judge Robart, in the Microsoft v. Motorola case, is right, and disputes about FRAND patents are and should be analyzed as a contract case? Apple still can't prevail, the ITC stated, because "Apple has not identified the basic elements necessary to prove a contract: the parties, the offer, the acceptance, the consideration, and definite terms." Like agreeing that injunctions are forbidden, for example. But that never happened.

Worse, the ITC found, Apple never identified "what the specific obligations may be that flow from Samsung's FRAND declarations" and before you can prove a breach, a party has to "prove what the obligation is." File that under Duh. If it's a contract, there have to be spelled out what each side is obligated under the contract to do and not do. Here, that never was demonstrated. And neither courts nor regulatory bodies can just guess:

Even if the Commission were inclined to sua sponte attempt to interpret Samsung's FRAND declarations (which it is not), we would not be able to reach any definitive conclusion about Samsung's obligations based on the record of this investigation. Samsung's declarations to ETSI state that '[t]he construction, validity and performance of this DECLARATION shall be governed by the laws of France."…That choice of law provision should be honored….The parties agree, however, that at the hearing in this investigation Apple presented no evidence of how "the laws of France" would view Samsung's obligations with respect to declared-essential patents in this forum. Without such evidence, the Commission cannot determine what Samsung's legal obligations may be and whether those obligations have been breached.10

10 In Order No. 47, the ALJ determined that under French law, price is a necessary term for the formation of a contract and that Samsung's FRAND declaration did not grant Apple a constructive license to the '348 and '644 patents. See id. at 37. By failing to petition for review of the order in its petition for review of the final ID, Apple waived any challenge to the ALJ's conclusions.

Here's how the Innovation Alliance, in its public comment, argued that to deny injunctions based on FRAND would make sweeping changes to US trade laws, as described by the ITC Opinion:
Innovation Alliance is a coalition of companies that seek to "protect[] the integrity of the U.S. patent system." Innovation Alliance argues that to deny exclusion orders based on infringement of standard-essential patents would make "sweeping changes" to U.S. trade laws based on "the mere possibility of potential harm, and without any actual evidence of harm to U.S. consumers." Innovation Alliance notes that critics of exclusionary remedies for infringement of standard-essential patents, including the FTC, base their arguments on the potential problem of so-called "patent hold-up." Innovation Alliance cites at least eight sources, including scholarly publications, that find little evidence that patent hold-up is actually a problem. Innovation Alliance notes that litigation involving declared-essential patents is not necessarily evidence of patent hold-up.

Innovation Alliance also asserts that barring the availability of exclusion orders for infringement of standard-essential patents will have negative consequences. An implementer of standardized technology will have little motivation to bargain in good faith with patentees because litigation can defer payment of royalties. Further, participants in SSOs would have fewer patent rights than non-participants, which would result in fewer innovators participating in SSOs.

Qualcomm pointed out that ETSI only imposes obligations to offer a FRAND license "to the extent that the IPR(s) are or become, and remain ESSENTIAL" to practice the standard. So if Samsung's patent is not essential to the 3G standard, Samsung has no FRAND obligations at all. And so, as Qualcomm argued in its public comment, because Apple argued to the ITC that Samsung's asserted patents are not essential, Qualcomm contended that Apple's claim that Samsung has breached its FRAND obligations rings hollow. That's on page 134 of the PDF, A12 of the document. Not only that, but changing the rules after the fact of donation in effect penalizes patent owners for making FRAND commitments, which inevitably reduce participation in standards bodies, and the effect of that will be harm to consumers from the resultant proliferation of non-complementary technologies.

In short, a policy decision was made, but without question, Samsung got the wrong end of the stick through no fault of its own, without deserving to be called names by Apple, which apparently learned nothing from the UK incident, where it was sanctioned by the court, forced to correct the record on its website after falsely accusing Samsung there.

Update: Matt Rizzolo of The Essential Patent Blog analyzes the letter differently, with the result that he wonders if there could be a way for Samsung to still seek an injunction at the ITC. Here's some context, first, on his thinking:

The letter clearly states that exclusion orders may be available as a remedy for FRAND-encumbered SEPs in some circumstances, so this does not appear to represent a complete bar on SEP cases at the ITC. The letter concludes with a statement that the decision is “not … a criticism of the Commission’s decision or analysis” (although there plainly seems to be something he disagrees with). He also notes that while that while Apple and Samsung vigorously dispute the FRAND-related facts of this case, “it is beyond the scope of this policy review to revisit the Commission’s analysis or its findings based on its record.” Nevertheless, Ambassador Froman states that he decided to disapprove of the remedy issued by the ITC based upon his review of the various FRAND-related policy considerations as they relate to the effect on competitive conditions in the U.S. economy and the effect on U.S. consumers. The question many are asking is, what could the ITC (and/or Samsung) have done differently to avoid this disapproval?

The penultimate paragraph appears to provide some guidance for the Commission in evaluating FRAND issues in current and future cases. Here, the USTR calls for the ITC to:

  • Examine thoroughly and on its own initiative (emphasis added) the public interest issues presented at the outset of its proceeding and when determining whether a particular remedy is in the public interest; and

  • Seek proactively to have the parties develop a comprehensive factual record related to these issues in the proceedings before the ALJ and during the formal remedy phase of the investigation, including information on the standards-essential nature of the patent at issue (if contested by the patent holder) and the presence or absence of patent hold-up or reverse hold-up (i.e., licensee “hold-out”).
The USTR notes that the Commission should endeavor to “make explicit findings on these issues to the maximum extent possible,” and that he will look for these elements in future policy reviews of decisions made in FRAND-encumbered SEP cases. And it seems that the USTR is placing the burden squarely on the ITC itself to bring up these issues sua sponte, even if the parties haven’t fully addressed them for whatever reason. In the future, we may see more public interest fact-finding in FRAND-related Section 337 proceedings delegated to the ALJs, so that a more robust record can be developed.
Rizzolo acknowledges that the ITC did ask for exactly that from the parties. However, after all that briefing, the Commission still wrote that there was still one issue in dispute -- whether or not the patent at issue was in fact standard-essential. "This is one issue where the USTR now seems to be requiring a particular finding regarding essentiality or non-essentiality," Rizzolo writes.

Maybe, Rizzolo argues, the issue is simply that there was insufficient detail, because the COmmission certainly did address the issues to some extent:

But note that the Commission (beginning at p. 52 of its opinion) also considered in the alternative the merits of Apple’s FRAND defense — assuming (1) that the patent at issue was essential to the standard, (2) the FRAND obligation applied, and (3) that the FRAND obligation was legally enforceable. In doing this alternative analysis, the ITC analyzed the history of the Samsung-Apple negotiations, finding that Apple did not prove that Samsung failed to negotiate in good faith for a FRAND license. As to the issues of patent hold-up and reverse hold-up, the Commission found (on pp. 62-63) that Apple may have been engaged in reverse hold-up, while it noted (on p. 66) that “Samsung can hardly be accused of patent hold-up when it has licensed its declared-essential patents…to more than 30 companies.”

It seems at least arguable that the Commission in the -794 case did address the issues cited by Ambassador Froman, at least to some extent. But perhaps the ITC’s analysis was not thorough, comprehensive, and explicit enough, and its assignment of the burden of proof on FRAND issues to Apple seems to have not been well-received by the USTR (although assigning the FRAND burden to the accused infringer was long the practice of the ITC and continues to be the case in district courts).

And if it is possible the Commission didn't address all the issues sufficiently to satisfy, it raises an intriguing question:
This in and of itself raises an interesting question — could Samsung now ask the Commission to make further, more detailed findings of fact relating to the FRAND issues in the -794 case, in an attempt to satisfy the standards set forth in Ambassador Froman’s disapproval letter? It may not be out of the question — the disapproval only relates to the exclusionary relief already issued by the ITC, and doesn’t categorically bar any future potential relief. In prior cases involving Presidential disapproval of ITC exclusion orders, the ITC has in fact issued modified exclusion orders after the inital exclusionary relief was vetoed.
Personally, I think the letter's issues were pretextual, not substantive, which is why they don't really match the facts, almost as if the Commission's opinion wasn't even read carefully because the decision was already written in the stars. If I'm right, then Samsung trying another shot will simply result in more pretextual "reasons" why it can't prevail, but Rizzolo is a patent lawyer and I'm not, so what do I know in comparison? So, there it is, a possible way for Samsung to move forward.

Update 2: Michael Philips in The New Yorker, in an article titled Obama’s Apple Rescue, adds to the pro-Apple myth-building about this somehow being Samsung's fault, by writing:

But Samsung overplayed its hand. During the I.T.C. process, Apple argued that Samsung would only issue a license for the ’348 patent in exchange for a license to Apple’s nonessential patents—the patents covering the technologies that make the iPhone special and different from, say, Samsung’s phones. This demand, to essentially tie the licensing of Samsung’s standard-essential patent to Apple’s nonessential ones, earned Samsung a blistering dissent from one commissioner of the I.T.C.
That is absolutely not the case. Samsung didn't overplay, according to the ITC, which in its opinion stated that Samsung did nothing wrong by doing so, that it was standard and reasonable to seek a cross-license:
Apple also criticizes Samsung's attempt to negotiate a cross-license of both parties' mobile telephone patent portfolios. We cannot say that Samsung's offers in this regard are unreasonable. The record contains evidence of more than 30 Samsung licenses that cover the '348 and '644 patents. See RX-173C, RX-178C, RX-188, RX-189C, RX-191C, RX-193C to -209C, RX-421C, RX-423C. All of those licenses include a cross-license to the licensee's portfolio. That evidence supports a conclusion a portfolio cross-license offer is typical in the industry and reasonable.

Apple has offered no evidence to suggest that such portfolio cross-licenses are atypical in the industry. 19 In fact, Apple's own witness on ETSI policies affirmed that ETSI anticipates cross-licensing may be part of the process of negotiating a FRAND license between two parties. See Tr. at 1443 (Walker). Additionally, the negotiating history recounted above shows that Apple has made cross-license offers to Samsung.

We also note that commentators have stated that an offer to cross-license both parties' patents may be consistent with a FRAND obligation, for example:

The obligation to make a FRAND offer does not prevent the standard-essential patent owner from entering into an alternative licensing arrangement, such as a portfolio cross license, with an implementer ofthe standard. It will often make sense for private parties to enter into a deal that reflects their specific circumstances.


[A] FRAND offer to a party that owns standard-essential patents can be made conditional on the would-be licensee itself making a reciprocal FRAND offer.

Lemley, Mark A. and Shapiro, Carl, A Simple Approach to Setting Reasonable Royalties for Standard-Essential Patents Stanford Public Law Working Paper No. 2243026, 5-6, 17 (March 30, 2013), available at That approach appears consistent with the expectations of ETSI, as has been explained on the record in this investigation. See Tr. at 1443 (Walker). Moreover, the ETSI declarations Sarnsung executed specifically contemplate that a FRAND license will invoive "terms and conditions," not just a royalty rate. See RX-723.

19 The Commission notes that none ofthe licenses submitted in this investigation are to a single declared-essential patent, rather they are all pmtfolio cross-licenses, in some instanaces covering [[ ]] . See RX-173C, RX-1 78C, RX-188, RX-189C, RX-191C, RX- 193C to 209C, RX-421C, RX-423C. In addition, [[ ]], the record supports a conclusion that a common industry practice is to use the end-user device as a royalty base. Id.

Some folks want to pretend that Samsung did something to justify the presidential pardon, but what it did was be a non-US company trying to get a fair shake in a US context.


Apple's ITC Presidential Pardon v. The ITC's Opinion ~pj - Updated 2Xs | 240 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here please
Authored by: jesse on Tuesday, August 06 2013 @ 04:32 PM EDT
Thank you.

[ Reply to This | # ]

News Pick discussions
Authored by: jesse on Tuesday, August 06 2013 @ 04:33 PM EDT
Thank you.

[ Reply to This | # ]

COMES document thread
Authored by: jesse on Tuesday, August 06 2013 @ 04:34 PM EDT
Thank you.

[ Reply to This | # ]

Off topic discussions
Authored by: jesse on Tuesday, August 06 2013 @ 04:35 PM EDT
Thank you.

[ Reply to This | # ]

Patent enforcement fail
Authored by: tknarr on Tuesday, August 06 2013 @ 04:42 PM EDT

I think that the US has just gutted it's ability to get any of it's patents enforced anywhere else in the world. Pulling something like this is an open invitation for other countries to do the same, overturning a finding of infringement based on public policy. Hmm, weren't the pharmaceutical companies complaining about other countries manufacturing generics of their patented drugs? If I were them I'd be on the phone to Congressmen saying "Do you realize what the White House just did to us?!".

[ Reply to This | # ]

Apple's ITC Presidential Pardon v. The ITC's Opinion ~pj
Authored by: Anonymous on Tuesday, August 06 2013 @ 05:06 PM EDT
So why doesn't Samsung push for a ban on *SHIPMENTS* from mainland China or
anywhere else to the United States of the products that were found

That way the President can't do *pardon my french - SQUAT* about it.

Bypass the entire Presidential law-breaking fiasco in one fell swoop.

[ Reply to This | # ]

Apple's contridicting itself?
Authored by: Anonymous on Tuesday, August 06 2013 @ 05:43 PM EDT
"Further, Apple conceded in its ITC briefing that FRAND patent holders are
not barred from seeking injunctions, and in fact since Apple argued to the ITC
that the '348 patent was not really essential, this would mean that Samsung had
no FRAND obligations, due to the wording of the ETSI terms. "

So they say that FRAND patents should be allowed to seek injunctions in their
briefing but called foul when it happened later? On top of that they said the
patent wasn't even essential So if that was case Samsung didn't have to license
it in first place.

[ Reply to This | # ]

Apple's ITC Presidential Pardon v. The ITC's Opinion ~pj
Authored by: Anonymous on Tuesday, August 06 2013 @ 05:46 PM EDT
While it is tempting to play the protectionism card, lets not forget that Google
is a US company, and they aren't exactly a bystander to all of this. It takes
more than one case to make a trend.

That said--if the Administration's position is that these sorts of disputes,
particularly among multi-national companies (whether foreign or domestic) that
are within the reach of US courts, ought not be settled at the ITC--I'm all in
favor of that. I'd prefer that ITC import bans be limited to the case of
third-party imports of infringing products made by overseas entities with no US
presence--who are not reachable by the US court system (and may not intend for
the products they make, which may be legal where made, to be sold in the US
market in the first place). In this case, where there's nobody to sue, ITC
jurisdiction makes sense. But in a dispute between Apple and Samsung, or
Microsoft and Motorola--use of the ITC to resolve patent disputes due to the
technicality of overseas manufacture, strikes me as abusive forum-shopping.

[ Reply to This | # ]

Motorola v. Microsoft
Authored by: Anonymous on Tuesday, August 06 2013 @ 05:51 PM EDT

Will this have an effect on the Motorola v. Microsoft case? There are certainly similarities, especially: Apple has not identified the basic elements necessary to prove a contract: the parties, the offer, the acceptance, the consideration, and definite terms. Replace Apple with Microsoft and you've pretty much got this case summed up.

Sadly, I get the feeling that the judge will continue to ignore all other precedent from other courts and maintain his belief that he knows better than everyone else.

[ Reply to This | # ]

Apple's ITC Presidential Pardon v. The ITC's Opinion ~pj
Authored by: Dent on Tuesday, August 06 2013 @ 05:58 PM EDT
I think you're a little off base on this one.

Samsung licensed the patents to Infineon and Intel (makers of the chipset that
supposedly infringes - Intel bought Infineon) and Apple is covered by patent
exhaustion (they bought a licensed product).

Samsung was requesting a licensing price of 2.4% (down from 2.7 initial ask) of

the sale price of the $600+ iPhones, rather than the $12 price of the chipset.

Judge Lucy Koh already ruled that Apple did not infringe Samsung's patent.

Samsung is trying to game the system to make it look like they didn't blatantly

rip off Apple's product. Something they already lost on with the only jury
returned in these cases.

[ Reply to This | # ]

I hope India (and others) simply void the pharmacutical patents
Authored by: jesse on Tuesday, August 06 2013 @ 06:47 PM EDT
And allow any generic drugs to be made.

Save a TON of money.

Of course, next will be the mail order pharmacies - US customers will purchase
them from overseas just to save a few hundred dollars per pill.

[ Reply to This | # ]

Apple's ITC Presidential Pardon v. The ITC's Opinion ~pj
Authored by: Anonymous on Tuesday, August 06 2013 @ 07:09 PM EDT
From the start, you are using words that show a clear agenda. A "pardon" is issued when someone is forgiven a crime, and implies culpability. There is no "pardon" here. The government overruled a decision made by some other part of the government, which is following exactly the intended process: The ITC makes a decision, and that decision can then be accepted, or rejected, or no action is taken (which is in practice as good as accepted). In this case, an ITC decision was rejected.

Now we all know that Apple is evil, Google is good, and Samsung is good by association, therefore the ITC decision against Apple was good and rejecting the good ITC decision is evil. Which is just more proof that Apple is evil, because they were supported by an evil decision, while good Samsung was supported by a good decision. Patents used against evil Apple are good, which shows that Samsung is good for using patents against evil Apple, while patents used against good Samsung are evil, which shows that Apple is evil for using patents against Samsung.

And the EU is evil as well, for threatening Samsung with fines if they try to use standard essential patents to stop Apple from selling their devices...

[ Reply to This | # ]

Apple's and MS's - Strategist will have the champagne out.
Authored by: SilverWave on Wednesday, August 07 2013 @ 01:41 AM EDT
Their game plan has worked.

Oh well thats why the keep all those great lawyers on the

I don't blame a shark for being a shark, (though that
doesn't mean I like it biting people).

Not even disappointed by the Presidential Pardon, he is a
politician, Apple is a huge US company, no one expects Fair
or Just under those circumstances.

Still won't stop Google and Android.

Samsung will be pretty well used to governments playing fast
and loose with the rules and just keep on churning out
Android phones...

One less favour for Apple to cash in in the future.

Moving on.

RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

'neither courts nor regulatory bodies can just guess'...
Authored by: Ian Al on Wednesday, August 07 2013 @ 03:02 AM EDT
... unless the plaintiff is Microsoft. I am feeling more confident that this is what Motorola was driving at in their brief (see, 'Bemused, bothered and bewildered') for summary judgement.

I think that this opinion of the ITC is going to be a very troubling precedent for Judge Robart.

Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

[ Reply to This | # ]

How to fix FRAND patents
Authored by: Anonymous on Wednesday, August 07 2013 @ 03:26 AM EDT
Apple is - as far as I can see - clearly in
the wrong here.
They have absolutely been caught out trying
to game the patent system (as they have done
repeatedly in other ways without being
caught), and also attempting to misuse the
law to politically damage a competitor

That said, the FRAND licensing setup is
completely insane, and standards bodies must
change how they how SEPs are licenced.

I suggest that as part of the patent being
FRAND committed for a standard, the
pricing negotiations (and arguably the
decision to pursue injunctions) should be
handed over to the standards organisation who
can then (independently) determine a price
appropriate in each case, using a panel of
disinterested third party members. They could
handle appeals and arbitration within the
standards body.

Any unwilling licensee would simply not have
a license and be barred from implementing
(and also lose the rights to use any branding
associated with the standard (such as WiFi or
Bluetooth branding or logos, on which the
standards org could then sue). In cases where
they continue despite bans, the independent
decision of the standards body would be
particularly influential in a court case, and
the question of fair FRAND pricing would be
already resolved.

If companies want to negotiate separately for
and with non FRAND patents they can do so,
but it shouldn't form any part of the FRAND
pricing or negotiation. This seems much
simpler and fairer and removes pointless
burden from the courts, as well as obviating
political tinkering with legal issues.

Apple have been very lucky here to be let of
the hook, and I hope the courts reprimand
them for their bogus claims of innocence and
Samsung's guilt despite findings to the
contrary. Can that happen in the US, or can
companies make public statements lying
against legal findings against them with


[ Reply to This | # ]

I don't get this part?
Authored by: rsteinmetz70112 on Wednesday, August 07 2013 @ 10:25 AM EDT
Who decides if a patent is essential?

One of the issues highlighted in the update is whether a patent is essential,
but I don't get how that is important the decision.

Apple actually argued that the patent wasn't essential therefore if anything
making Samsung's case for banning infringing products stronger. If Apple is was
right then Samsung had no obligation, if Apples is wrong how does that help

Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Proper procedure and standards
Authored by: phschm on Wednesday, August 07 2013 @ 12:20 PM EDT
Summarizing in two points.

First, there is a proper procedure for changing rules. We may not agree about
how standards are being set today and with software patents in general, but that
is how currently the rules are. If the executive administration was seriously
concerned regarding those FRAND patents then they should work with the
legislative who has the power to change those rules. That is the proper way to
do things, not through some one case exception. Their veto power should be
reserved for very extreme cases where truly the public would be harmed, which is
not the case for easily replaceable old versions of a phone.

Same would have happened if say IBM were to be granted an injunction based on
software patents against a new version of Microsoft Windows and, instead of
Microsoft working around it or settling, they were graced with an exception.

Which leads to the second point. Standards should be flexible enough to allow
for different implementations of everything in it, else they would instead be
just reference implementations. Innovation comes from not only doing new things
but also in doing what is already being done in a different way.

Be it patents for the like of software, business models and so on or through
strict, one way to implement, standards the damage is the same. That ought to be
fixed, but through proper procedure.

[ Reply to This | # ]

Catch 22
Authored by: Anonymous on Wednesday, August 07 2013 @ 12:41 PM EDT
The US is working overtime trying to convince the rest of the world to adopt the
US patent system.

However, the US can ignore the rest of the world's patents.

Hmm... tricky.

[ Reply to This | # ]

  • Except... - Authored by: Anonymous on Wednesday, August 07 2013 @ 01:58 PM EDT
Sorry PJ, not the President; the U.S. Trade Representative
Authored by: Anonymous on Wednesday, August 07 2013 @ 12:47 PM EDT
I know it is popular to accuse the President of having personally done all
things in the Executive branch, but there is actually a huge tree of differing
responsibilities. The President is at the top of that chart and can certainly
hire and fire people, or more often, their boss's boss's boss, if they want to
get their way. Could a President cause such a decision such as this if they
wanted? Probably.

However, we actually know that in this case it was U.S. Trade Representative
Michael Froman who made this decision.

Presidents are busy. I doubt this made the daily brief. Playing into a partisan
version of events just riles people up, it doesn't accurately describe events,
help to get your way, or help the Government untangle the patent mess.

[ Reply to This | # ]

Presidential Pardon entirely predictable from Obama's "Patent Assertion & U.S. Innovation"
Authored by: Gringo_ on Wednesday, August 07 2013 @ 01:32 PM EDT

Back around the 1st of June of this year, the Obama administration released their paper entitled " PATENT ASSERTION AND U.S. INNOVATION".

At that time, Groklaw published an analyses of it entitled "BREAKING: Why the Obama Administration’s Actions Against Patent Trolls Should Make a Difference ~ Matt Levy"

Groklaw was ecstatic that the Administration recognized the problem with patent trolls, saying...

The Administration deserves huge praise for this — many of us have been pushing for just this change for a long time. Obviously, it will take time to implement, but it is clear that the Administration is committed to making this commonsense reform happen.

However, few read the details of the paper itself, where Obama also addressed the "problem" of SEPs. At that time I noticed that what appeared to be a deliberate fudging of the realities of the Apple's patent war raged against Google, amounting to a deliberate misunderstanding. Please see my followup "Addendum" below my comment.

It appears to me now that the Administration has a bias against Google, and by extension Android and therefore Samsung.

[ Reply to This | # ]

Hyperbole Much
Authored by: Anonymous on Wednesday, August 07 2013 @ 01:52 PM EDT
"It's indisputable that this has harmed Samsung, and since the ITC"

Yes it is disputable as several news outlets have covered.

What you fail to grasp is that Samsung was using a technicality that iPhones are
made in China to ban importation of them into the United States!

"In a June 4 ruling, the commission banned the importation into the U.S. of
the iPhone 4, iPhone 3GS, iPad 3G and iPad 2 3G distributed by AT&T."

If the iPhones were made in the United States there would have been no important
ban. Get it. This was just a nuisance move by Samsung. Nothing more.

It does not stop any litigation by Samsung.

Time to switch to decaff PJ.

[ Reply to This | # ]

  • Hyperbole Much - Authored by: Gringo_ on Wednesday, August 07 2013 @ 02:01 PM EDT
    • Yes... - Authored by: Anonymous on Wednesday, August 07 2013 @ 02:08 PM EDT
    • Also - Authored by: Anonymous on Wednesday, August 07 2013 @ 02:12 PM EDT
      • Ah, but - Authored by: Anonymous on Wednesday, August 07 2013 @ 02:56 PM EDT
  • You keep missing the point... - Authored by: Gringo_ on Wednesday, August 07 2013 @ 02:23 PM EDT
  • Once again - Authored by: Anonymous on Wednesday, August 07 2013 @ 02:49 PM EDT
  • Hyperbole Much - Authored by: tknarr on Wednesday, August 07 2013 @ 02:52 PM EDT
Apple and Obama agree with Europe
Authored by: Anonymous on Thursday, August 08 2013 @ 04:04 AM EDT
I think Samsung is completely wrong in what they tried to do. They tried to
force Apple to give them a license to all of Apple's proprietary patents just to

have a license to one SEP patent Samsung had agreed previously to license on
FRAND terms.

The ITC was completely wrong (except for one person) in twisting this case
around so that it completely ran against reason and the previous rulings on
patents in the US and in Europe. In Europe, Samsung was going to be
sanctioned for using its FRAND encumbered SEP patents against Apple. It
quickly withdrew every FRAND patent lawsuit against Apple when it would
have been clearly charged with an antitrust violation.

Obama is right in overturning this ITC ruling. It simply makes no common

By siding with Samsung on this issue, Groklaw has become so extreme right-
wing in its thinking, it is amazing that it originally was on IBM's side against


[ Reply to This | # ]

Authored by: Anonymous on Friday, August 09 2013 @ 05:37 AM EDT
Just have a country such as India or China declare injunctions on a leading US
drug impossible for public interest reasons and watch the flames light up....

[ Reply to This | # ]

Is the Presidential Pardon document available anywhere on Groklaw?
Authored by: Anonymous on Saturday, August 10 2013 @ 02:04 PM EDT
I found this link here, but I don't know how long it will last.

[ Reply to This | # ]

Apple's ITC Presidential Pardon v. The ITC's Opinion ~pj - Updated 2Xs
Authored by: Anonymous on Monday, August 12 2013 @ 06:01 AM EDT
Any thoughts on starting a "We the People"
petition on the whitehouse website asking
for a reversal on this?

[ Reply to This | # ]

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