Samsung Fails to Win Presidential Veto of Potential U.S. Import Ban in Apple Patent Case

[MikhailT]

"Negotiate the price" also takes the Apple position (though you probably think this is legit because of a recent Posner comment).

If you said "compel the license" or "enforce the patents" you would be better describing the purpose of the first veto.

These are FRAND patents - there really isn't much room for negotiation.

Huh? Did you read the case behind the first veto? Apple offered to license SEPs but Samsung said they're not SEPs, so they then went to ITC to claim patent infringements instead because Apple refuses to pay the much higher rate that Samsung has demanded. FRANDs explicitly said you cannot do this if your patents are declared SEPs, it must be the same price to be fair to everybody who licenses these SEPs, regardless of what Samsung said.

You're right that there is no room for negotiation for FRANDs, but Samsung says they're not FRANDs and therefore there's room.

 

[macs4nw]

Apple is based in the USA. Samsung is based in Korea.

President of the USA sides with USA based company.

How amazing.

I would tend to think, he would go out of his way, to NOT make it even remotely appear as such, demonstrating to be beyond being accused of favoritism. The fact Samsung's ban was vetoed, and Apple's ban was upheld likely means those trade representatives decided that after their careful review of the case(s), in their opinion, the decisions reached were the only fair conclusions. They undoubtedly took an extra long hard look at both cases, before making their recommendations, to make sure they couldn't reasonably be accused of such partial behavior.

Rulings like these have to be iron-clad and beyond reproach; those making these decisions are acutely aware that failing that, their authority in future cases is severely undermined.

 

[Glideslope]

Good

Now let's pull our 40,000 Troops out of S. Korea and let them defend their border.

For the 6th time they pulled out this March. Pull the troops.

 

[paul4339]

Apple is based in the USA. Samsung is based in Korea.

President of the USA sides with USA based company.

How amazing.

Last time (before the Apple veto) the US president sided with Asian companies (Samsung being one of those companies).

.

 

[sw1tcher]

Samsung is as dirty as Steve Jobs was innovative. Some of the components in the products I use may be Samsung, but I will never purchase a Samsung branded product, ever.

Samsung's still getting your money, the only difference is it's through Apple.

It should also be noted that Steve Jobs wasn't exactly a saint.

 

[pacalis]

Huh? Did you read the case behind the first veto? Apple offered to license SEPs but Samsung said they're not SEPs, so they then went to ITC to claim patent infringements instead because Apple refuses to pay the much higher rate that Samsung has demanded. FRANDs explicitly said you cannot do this if your patents are declared SEPs, it must be the same price to be fair to everybody who licenses these SEPs, regardless of what Samsung said.

You're right that there is no room for negotiation for FRANDs, but Samsung says they're not FRANDs and therefore there's room.

Apparently you only read half the information. You completely ignore the facts that in the first case, that after considering the nature of the patents (where they were found to be SEPs) that the ITC sided with Samsung and found that the license offer "is typical in the industry and reasonable."

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-42 IC, RX-423C. All of those licenses include a cross-license to the licensee's portfolio. That evidence supports a conclusion that 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. 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.

 

[Dana Beck]

Not surprised...
Usa is the world's most corrupt contry...
Us Itc and uspto is a joke, just like the whole country, God thank that i am not american and not live in there.

"Those who doth protest the loudest..."

Your feelings on the patent dispute are certainly yours to own. When it comes to expressing vague generalities on our country itself, however, feel free to take your posts "offshore" if the US is so reprehensible to you. Can't imagine you could bring yourself to even buy Apple products anyway, frankly, as it is a company based in Cupertino, CA, remember?....why "dirty your hands" with participation in this forum?

 

[MikhailT]

Apparently you only read half the information. You completely ignore the facts that in the first case, that after considering the nature of the patents (where they were found to be SEPs) that the ITC sided with Samsung and found that the license offer "is typical in the industry and reasonable."

It isn't that simple. This article explains why.

 

[Mr Bigs]

Samsung is as dirty as Steve Jobs was innovative. Some of the components in the products I use may be Samsung, but I will never purchase a Samsung branded product, ever.

Don't sugar coat it Steve had plenty of dirt on him too.

 

[DeathChill]

Apparently you only read half the information. You completely ignore the facts that in the first case, that after considering the nature of the patents (where they were found to be SEPs) that the ITC sided with Samsung and found that the license offer "is typical in the industry and reasonable."

A member of the ITC apparently disagreed that requiring cross-licensing to non-SEP was fair and wrote this:

"That the only time Samsung made such an offer — in oral discussions in December 2012 — it came with strings attached to which Apple could not agree.

What those strings were are blacked out in the document, but Pinkert adds in the next sentence: “it is neither fair nor non-discriminatory for the holder of the FRAND-encumbered patent to require licenses to non-FRAND-encumberd patents as a condition for licensing its patent” (emphasis his)."

Reading between the lines, it sounds like Samsung had refused to license its standard-essential patents (SEPs) unless Apple offered its non-essential iPhone patents — the company’s crown jewels — in return.

 

[harlequinn]

HA! Have you even been to South Korea? I have. The ONLY American-made product I saw for both times I've been there were American Standard URINALS. Everything else is Korean-made.

Do some research before accusing the American government of being protectionistic. The South Korean government is by far more protectionistic.

You asserting Korea also does it does not make his assertion invalid, nor does it make it right for either country to do it.

 

[pacalis]

It isn't that simple. This article explains why.

Of course it isn't simple. More or less everyone else in the industry participates in the standards except Apple. Look at the Qi standard. Over 100 partners contributing to the ecosystem, but not Apple.

So that means everyone else has SEP to trade and cross-license, but Apple doesn't. Think about everyone using micro-USB but Apple using the lightening cable. Micro-USB standard essential. Lightening cable not.

Now apple will claim the lightning patents are their crown jewels, that they are innovative etc... They're going to do the same for their eventual wireless charging solution. Then, if they miss something Samsung or Google has around Qi, their going to throw up their arms and say that the other party has acted in bad faith.

The ITC did not find that Samsung acted in bad faith. Doesn't matter if there was a dissenting member. So the Apple claim has yet to be supported in fact.

What is supported in fact is that Apple does not have a license and the ban was one of the few levers the ITC could use to compel a license.

 

[MJL]

Apple is based in the USA. Samsung is based in Korea.

President of the USA sides with USA based company.

How amazing.

Clearly O ma has been taking lessons from Apple - either my way or the highway.

The veto is a "thank you" for those lessons.

(PS the Chinese have been doing this for ages, wonder why no one has woken up to that fact yet)

 

[funkybudda]

Copy THAT bitches!

you mean if Steve Jobs still alive and innovates, Samsung pretty much dont need to "copy" anything that Apple has done the past few years, more like Apple is playing catchup. ROFL HAHAHAHAHAHA.

 

[Ursadorable]

you mean if Steve Jobs still alive and innovates, Samsung pretty much dont need to "copy" anything that Apple has done the past few years, more like Apple is playing catchup. ROFL HAHAHAHAHAHA.

English as a second language?

 

[kdarling]

A member of the ITC apparently disagreed that requiring cross-licensing to non-SEP was fair and wrote this:

First off, he was the sole dissenter. His opinion is not the decision. More importantly, the part you're quoting was a statement taken out of context. (Not your fault. It's how news sites get clicks.)

I always try to go to the source. In this case, that's the hundreds of pages of evidence available at the ITC website.

Despite what we read from the internet echo chamber, the evidence is that Samsung didn't "demand cross licensing". That was simply the basis of their lower offers. (Their first offer was the cash price, which everybody in the industry expected Apple to negotiate down.) As the ITC ruling noted:



All that Pinkert was talking about, was whether or not Samsung's offer of cross-licensing should count in the overall list of offers.

The reason this was important, was because THE ITC DECISION TO BAN APPLE'S PRODUCTS WAS BASED ON THEIR FAILURE TO NEGOTIATE FRAND TERMS WITH SAMSUNG. Instead, Apple apparently made one lowball offer and refused to budge from it. That's called "reverse holdup".

This was the critical decision point. In every court, in every country, an injunction is considered fair... even for FRAND patents... if the licensee fails to negotiate in good faith. Apple was unable to prove to the ITC that they had done so:

 

[lazard]

First off, he was the sole dissenter. His opinion is not the decision. More importantly, the part you're quoting was a statement taken out of context. (Not your fault. It's how news sites get clicks.)

One thing about me, is that I always go to the source. In this case, that's the hundreds of pages of evidence available at the ITC website.

Despite what we read from the lazy internet echo chamber, the evidence is that Samsung didn't "demand cross licensing". That was simply the base of their lower offers. (Their first offer was the cash price, which everybody in the industry expected Apple to negotiate down.) As the ITC ruling noted:

View attachment 439759

All that Pinkert was talking about, was whether or not Samsung's offer of cross-licensing should count in the overall list of offers.

The reason this was important, was because THE ITC DECISION TO BAN APPLE'S PRODUCTS WAS BASED ON THEIR FAILURE TO NEGOTIATE FRAND TERMS WITH SAMSUNG. Instead, Apple apparently made one lowball offer and refused to budge from it. That's called "reverse holdup".

This was the critical decision point. In every court, in every country, an injunction is considered fair... even for FRAND patents... if the licensee fails to negotiate in good faith. Apple was unable to prove to the ITC that they had done so:

View attachment 439760

This. Apple made one lowball offer and called it a day.

 

[gnasher729]

Apparently you only read half the information. You completely ignore the facts that in the first case, that after considering the nature of the patents (where they were found to be SEPs) that the ITC sided with Samsung and found that the license offer "is typical in the industry and reasonable."

That's why you have oversight; so that companies don't suffer if a lower level gets it wrong. And they ignored recent recommendations that there should be no import bans for arguments about SEPs.

 

[kdarling]

That's why you have oversight; so that companies don't suffer if a lower level gets it wrong. And they ignored recent recommendations that there should be no import bans for arguments about SEPs.

"Recent" is the key word here. Many blogs write about how Motorola and Samsung were "wrong to ask for injunctions", and so forth.

Common sense should tell anyone that if it were clearly illegal, those companies would not have submitted requests for injunctions.

The fact is, the push to deny injunctions over cellular patents is a very recent one, brought about by Apple's complaints of having to pay higher rates (since they did not spend billions contributing to cell standards).

In other words, the legal and political thoughts in higher places (except the ITC) about injunctions over cell essential patents, has changed mid-stream.

--

Interestingly, ETSI FRAND rules do NOT forbid injunctions. Indeed, the only rule mentioned is that it is okay for an ETSI SEP holder to require cross licensing.

So the ETSI FRAND rules are actually the opposite of what people are often told by news sites which have obviously never read the rules themselves.

--

Note that I think it's good that the rates and legality are being revisited nowadays. At the same time, it is not fair to bash companies for simply doing what was allowable for decades beforehand. Rule changes need to be clear ahead of time.

The good news is that the DOJ etc have come up with clearer rules for the future. These rules spell out time limits. If a potential licensee fails to negotiate within a certain time period, the patent holder can then ask for arbitrated rates. If the licensee fails to pay those, then an injunction is allowed.

 

[BR3W]

Of course it isn't simple. More or less everyone else in the industry participates in the standards except Apple. Look at the Qi standard. Over 100 partners contributing to the ecosystem, but not Apple.

So that means everyone else has SEP to trade and cross-license, but Apple doesn't. Think about everyone using micro-USB but Apple using the lightening cable. Micro-USB standard essential. Lightening cable not.

Now apple will claim the lightning patents are their crown jewels, that they are innovative etc... They're going to do the same for their eventual wireless charging solution. Then, if they miss something Samsung or Google has around Qi, their going to throw up their arms and say that the other party has acted in bad faith.

The ITC did not find that Samsung acted in bad faith. Doesn't matter if there was a dissenting member. So the Apple claim has yet to be supported in fact.

What is supported in fact is that Apple does not have a license and the ban was one of the few levers the ITC could use to compel a license.

fyi, thunderbolt is an intel patent and lightning connectors aren't something that anyone else needs to use so the scenario you're describing isn't analogous.

 

[pacalis]

fyi, thunderbolt is an intel patent and lightning connectors aren't something that anyone else needs to use so the scenario you're describing isn't analogous.

You seem confused.

I didn't mention thunderbolt.

The lightening connector is separate technology that is designed and patented by Apple.

And certainly people owning lightening peripherals (not SEP) would like to use them across devices just as much as people with UBS peripherals (SEP) would like to use them across devices. Your argument is a total bust.

 

[BR3W]

You seem confused.

I didn't mention thunderbolt.

The lightening connector is separate technology that is designed and patented by Apple.

And certainly people owning lightening peripherals (not SEP) would like to use them across devices just as much as people with UBS peripherals (SEP) would like to use them across devices. Your argument is a total bust.

no, *you* are the one who is confused.

The Apple and Intel relationship undermines your argument but you can't cherry pick your data.

Apple pays Intel for their thunderbolt technology and charges people to use their lightening technology. That's both of their prerogatives under patent law. Simply because people *want* to use something does not give them a right to use a given technology as your attempt to blend any distinction between the lightening peripherals and the samsung patents in dispute.

Your understanding of how FRAND functions is completely backwards. Some corporations want their intellectual property to be part of a standard and, subsequently, agree to offer the use of said technology under fair and reasonable terms. They aren't bargaining chits to be used for cross-licensing terms.

 

[rjohnstone]

Your understanding of how FRAND functions is completely backwards. Some corporations want their intellectual property to be part of a standard and, subsequently, agree to offer the use of said technology under fair and reasonable terms. They aren't bargaining chits to be used for cross-licensing terms.

Before you embarrass yourself even more, SEP patents can and are used as bargaining chips for cross licensing deals all the time.
Cross licensing is one way to reduce cash payments.

Apple has entered into cross licensing deals over the last few years for SEP patents with Nokia and HTC.

 

[pacalis]

no, *you* are the one who is confused.

The Apple and Intel relationship undermines your argument but you can't cherry pick your data. Apple pays Intel for their thunderbolt technology and charges people to use their lightening technology. That's both of their prerogatives under patent law.

That Intel licenses to Apple has nothing to do with anything in this whole thread. Samsung licenses lots of patents to Apple already. And vice versa. Just not these particular patents.

Call that cherry picking data if you like, but patents have numbers for a reason.

Simply because people *want* to use something does not give them a right to use a given technology as your attempt to blend any distinction between the lightening peripherals and the samsung patents in dispute.

I made a distinction - that's why I put SEP and non-SEP in brackets so it would be clear to you that I clearly understood the distinctions. I didn't attempt to blend anything. You still seem confused.

Your understanding of how FRAND functions is completely backwards. Some corporations want their intellectual property to be part of a standard and, subsequently, agree to offer the use of said technology under fair and reasonable terms. They aren't bargaining chits to be used for cross-licensing terms.

The issue may be that your philosophy doesn't match with reality. SEPs are widely used in cross-licensing. And FRAND refers to the terms under which SEP patents are required to be licensed, not the patents themselves.

I've done a fair bit of licensing and I know I'm not confused (or if I was, I still managed to do well, lol). But had you read a little more of this thread you would see how language from ITC decision clearly emphasizes that SEPs are commonly negotiated in cross-licenses. They generally have to be, large portfolio owners prefer to IP trade far more than use cash.

 

[BR3W]

Before you embarrass yourself even more, SEP patents can and are used as bargaining chips for cross licensing deals all the time.
Cross licensing is one way to reduce cash payments.

Apple has entered into cross licensing deals over the last few years for SEP patents with Nokia and HTC.

saying that standard essential patents can be used in a trade to incentive a deal is a lot different than saying a patent holder can withhold them to coerce a deal.