John Paczkowski

Recent Posts by John Paczkowski

Samsung Hopes Obama Administration Will Veto Smartphone Ban

Veto_BanBack in August, the Obama administration overturned an import ban that Samsung had won against Apple’s older iPhones and iPads found to infringe one of its standards-essential patents. Now, on the eve of an import ban against some of its own devices, Samsung is seeking a similar reprieve from Washington.

On August 9, the International Trade Commission ruled against Samsung, finding that its Galaxy S 4G, Fascinate, Captivate, Galaxy Tab, Galaxy Tab 10.1 and a handful of other devices violated a pair of Apple patents covering a method of touchscreen control on mobile devices and audio I/O headset plug. The 60-day Presidential review period of that finding and the ITC order banning those products ends tonight, and Samsung is hoping that it will conclude with a veto similar to the one issued in the Apple case.

“The world is watching how Samsung is treated by the United States in this ‘smartphone war,’” Samsung said in a letter to the U.S. Trade Representative reviewing the case. “The administration has a significant interest in avoiding the perception of favoritism and protectionism toward U.S. companies.”

So Samsung should benefit from the same Presidential veto given Apple because, well, it’s only fair, right? That simplistic “me too” argument isn’t likely to carry much weight with the USTR, though, and for good reason: The patents at issue in Apple’s complaint against Samsung are decidedly different from the ones that were at issue in Samsung’s complaint against Apple.

Apple’s patents cover differentiating features. Samsung’s cover industry standards that the company is obligated to license under fair, reasonable, and non-discriminatory terms. Differentiating features can be worked around or surpassed by alternate technologies. Standards cannot. And that’s why the USTR vetoed the product ban Samsung won against Apple: Because it feels industry-standard patents should not be used to block competitors.

The issue here, then, isn’t favoritism, it’s standards-essential IP versus nonessential IP. And as U.S. Trade Representative Michael Froman told Bloomberg, that’s got little to do with the nationality angling for a product ban or slapped with one.

Samsung’s better off lobbying for a veto on the grounds that complex products shouldn’t be banned based on the infringement of a one or two smaller features. That argument, which Samsung also presented in its letter to Froman, might have slightly stronger legs.

“Overly-broad remedial orders covering complex products, of which only minor features are found to infringe, threaten legitimate trade and stifle innovation,” Samsung said. “There is a strong policy interest in ensuring that a patentee cannot hold an entire market hostage because of insignificant improvements to minor features or components.”


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