In In the Matter of Certain Electronic Digital Media Devices and Components Thereof, the U.S. International Trade Commission staff has found that Samsung Electronics Co. Ltd. failed to provide sufficient evidence to establish that banning imports of its smartphones and tablets that infringed Apple’s patents would harm consumers.
Last October, Administrative Law Judge Thomas B. Pender ruled that Samsung imported tablets and smartphones that infringed Apple’s patents. Samsung argued that an ITC ban on importing its phones would create a shortage. ITC staff concluded, however, that Samsung did not present convincing evidence that its competitors were incapable of adequately ramping up production. Samsung’s identifying “potential issues that may allegedly negatively impact production,” the staff reasoned, “is [in]sufficient to preclude relief in the investigation.”
The ITC continues to review the decision, and the parties are briefing the remedy issue should the decision be affirmed.
In a related matter, the ITC banned the importation of Apple products allegedly infringing a Samsung wireless standard essential patent. The ITC’s for the first time excluded products from the US market for infringing a standard essential patent that was required to be licensed on fair, reasonable and nondiscriminatory (FRAND) terms.
The Antitrust Division, the FTC, and the USPTO all urged the ITC use its mandate to consider the public interest as a means to factor in the competitive harm that could result if the owner of a standard essential patent could seek an import ban if it did not receive a royalty that it deemed appropriate. The ITC, however, did not believe that potential consumer harm was sufficient to forestall the import ban.
Because of the apparent disagreement between these agencies and the ITC, Congress may take action.