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Apple and Samsung patent war returns Friday

Grant Gross | Aug. 12, 2013
An appeals court will hear arguments on an import ban of Samsung products, while the USITC considers a separate ban.

CCIA criticized the USTR decision, with Ed Black, the trade group's president and CEO, calling it "a disruptive and potentially dangerous development that calls into question the fairness of our trading regime and could undermine the way U.S. companies are treated globally."

The USTR gave little guidance for its reasons, Black said in an email.

Some patent experts said it's unclear what broader implications the Obama administration's reversal will have on patent complaints filed at the USITC. The commission "has been under pressure from a number of directions to get in line" with a 2006 U.S. Supreme Court ruling that courts should not automatically issue an injunction after a finding of patent infringement, said Albert Foer, president of the American Antitrust Institute, a group that advocates for aggressive antitrust enforcement.

Foer praised the USTR's decision, saying it was fair after Samsung "effectively reneged" on a commitment to license the disputed patents on fair, reasonable and nondiscriminatory (FRAND) terms.

The USTR's decision could cause companies to think twice before filing a patent infringement complaint at the USITC in addition to pursuing infringement cases in court, Foer said in an email. If the USITC moves away from automatic import bans, "some of the movement from the federal courts to the ITC will be disincentivized," he said.

Technology lawyer Arif Mahmood questioned whether the USTR's veto will affect future patent disputes at the USITC.

"I don't think this puts into question any future USITC ruling as all participants know that any ruling banning the import of a product of massive economic importance is subject to a 'political' appeal," he said by email. The USTR's role "makes sense since a preliminary USITC ruling does not have the checks and balances of a fully appealed patent infringement action."

The USTR's decision "highlights how the USITC sometimes operates as a parallel legal system with massive economic consequences," Mahmood added.

 

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