In vetoing ITC’s decision to ban certain iPhones and iPads as requested by the ITC because they infringed Samsung’s Patent, I think the US Trade Representative got it wrong.
His reasoning is wrong. He reasons that owner of Standard Essential Patents (Samsung in this case) should not be readily given a ban because of their commitment to the Standard Body. However, this is wrong. ITC ‘s argument is Apple is doing a “reverse hold-up, i.e., delaying negotiations unfairly to get an advantage over Samsung. By not giving Samsung the ban it rightly deserved simply to drive home the principle of no easily available ban for Standard Essential Patent holder, he exaggerated the problem of reverse patent hold out. My
The good news is, even if it allowed the ban, the impact is negligible as it involves older products.
I hope Samsung takes the case further and this will result in a bigger financial lost for Apple over its bad behaviour.
My other hope is he is working on an 6 months old thinking, i.e., Standard Essential Patent holder should not be allowed to get a ban. FTC changed its view on preventing Standard Essential Patent Holders to get a ban based on those patent after consulting the public in the case of Google Motorola.
I also cannot help but to think that Apple is reaping benefit from its misbehavior over patents: It is one of the first to start litigating patents through ITC. That rightly generates negative reaction towards patent holders from all quarters, including the US Administration. It is now wrongly benefiting from the negative reaction because it was on the receiving end of the ITC case. That’s plainly unfair.