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ITC Extends Deadline, Asks for Briefs On Remedy & Public Interest Re Apple And Infringing Samsung FRAND Patents ~pj Update
Wednesday, March 13 2013 @ 07:44 PM EDT

I totally didn't expect this: The ITC has just posted a notice [PDF] that it wants input on the public interest in the case Samsung brought against Apple regarding alleged violations of Samsung's standards-essential patents. That's in Inv. No. 337-TA-794, In the Matter of Certain Electronic Devices, Including Wireless Communication Devices, Portable Music and Data Processing Devices, and Tablet Computers.

It has once again extended the deadline to announce its decision until May 31 as a result. It is asking for written submissions "from the parties and from the public" on the issues.

This is rather stunning. The Essential Patent Blog says this may "imply that the Commission could be leaning toward a finding that Apple infringes U.S. Patent No. 7,706,348 – a patent that Samsung has alleged is essential to the UMTS 3G cellular standard — and is now trying to decide what if any remedy it should order."

Samsung initiated the investigation in August of 2011, alleging Apple was infringing 4 of Samsung's patents with its iPhones and iPads. On September 14, 2012 the presiding administrative law judge issued a final determination that there was no violation. Then on November 19, 2012, the Commission determined to review that determination "in its entirety" and asked for written submissions on certain patent issues, "on the assertion of FRAND-encumbered patents" at the Commission, and on "issues of remedy, the public interest, and bonding." They got those.

Now this. It has, it says in the notice, "determined to seek additional information on the potential effect on the public interest, as identified in 19 U.S.C. Sections 1337(d)(1) and ((f)(1), if the Commission were to order remedies against articles alleged by Samsung to infringe claims 75, 76, and 82-84 of the '348 patent." Any interested persons are encouraged to file written submissions on the following issues:

1. How would remedial orders barring the entry and further distribution of the Apple articles alleged to infringe the asserted claims of the '348 patent affect the public interest....

2. What third, fourth, and later generation products (if any) are currently available in the US market that are authorized by Samsung to utilize the technoloty covered by the asserted claims of the '348 patent? Are these products acceptable substitutes for the accused iPhones and iPads and are they widely viewed to be acceptable substitutes for the accused iPhones and iPads?

3. In what ways, if any, should a remedy with respect to infringement of the '348 patent be specifically tailored to avoid harm to the public interest...? In addressing this issue, the Commission requests that submitters avoid discussing issues related to standards-setting organizations, as the record concerning those issues has been well developed....

4. With respect to the '348 patent, Samsung's infringement case before the Commision relied upon accused third and fourth generation Apple products that operate on the AT&T wireless network If the Commission were to issue remedial orders covering articles covered by the asserted claims of the '348 patent, would such an order cover (a) Apple products that operate on other wireless networks in the United States, and (b) later generation Apple products (e.g., iPhone 5, later iPad versions)?

5. Please summarize the history to date of negotiations between Samsung and Apple...

6. Please summarize all licenses to the '348 patent granted by Samsung to any entity....

7. Samsung and Apple are each requested to submit specific licensing terms for the '348 patent that each believes are fair, reasonable, and non-discriminatlry....

8. Which factors in Georgia-Pacific Corp. v. United States Plywood Corp., 318 F. Supp. 1116 (S.D.N.Y. 1970) are most relevant to determining whether Samsung has offered to license the '348 patent to Apple on fair, reasonable, and non-discriminatory terms?...

4 through 8 are for the parties. The '348 patent is US Patent Number 7,706,348. Matt Rizzolo, Esq., of The Essential Patent Blog has this take on what it means:
The issues identified in these particular questions show that Apple and Samsung’s attorneys certainly have their work cut out for them over the next few weeks — it appears that the ITC may undertake a full-blown FRAND evidentiary analysis in April and May, similar to what Judge Robart is currently going through in the Microsoft-Motorola case.

Interestingly, the ITC’s order notes that “a dissenting memorandum from Commission Aranoff can be found on EDIS,” which is the ITC’s docketing system. The dissenting statement is not yet available as of the time of this post, but we will do an updated post when it becomes available. But in the meantime, it once again looks like we’ll have to wait a few more months for certainty from the ITC on standard-essential patent issues.

Update: Susan Decker at Bloomberg News has some interesting analysis from another attorney, plus a bit more about possibilities going forward:
The agency may be trying to fashion a compromise giving Apple time to work around or license the patent, or to deny an import ban because of the impact on consumers and the competitive market, said Rodney Sweetland, a lawyer with Duane Morris in Washington who specializes in ITC cases.

“Were they not thinking about a violation, they would not need to ask for further information of this nature,” Sweetland said in a telephone interview. ...

The last time the ITC decided against issuing an import ban after finding a violation was in 1984, when it found that barring hospital beds designed for burn victims would harm patients who might not be able to get the equipment. In a patent case won by Apple against HTC Corp. (2498), the commission gave the Taiwanese handset maker time to design around the Apple invention.

Any import ban would have to be reviewed by President Barack Obama and the U.S. Trade Representative, who have the authority to reject an exclusion order on public policy grounds. The last time that happened, President Ronald Reagan in 1987 overturned an import ban on Samsung memory chips, Sweetland said.

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