While there are just a few days to go before the target date for the ITC’s long-awaited Final Determination in Samsung’s Section 337 investigation against Apple, that hasn’t stopped the parties from continuing to spar. Last week, Apple filed a “Notice of New Authority and New Facts” with the ITC, directing the Commission’s attention to a N.D. Cal. district court order that purported to preclude a standard-essential patent holder (LSI/Agere) from enforcing an ITC exclusion order against a willing licensee (Realtek). Today, Samsung filed a response, in which it accuses Apple of both (1) violating the ITC rules of practice and procedure, and (2) showing a “reckless disregard for the facts” and making misrepresentations about both this case and Samsung’s standard-essential patent dispute with Ericsson. Samsung asks the Commission to strike or disregard Apple’s notice.
Samsung first argues that the Commission should disregard Apple’s submission (as well as Apple’s May 14 submission regarding the Microsoft-Motorola RAND opinion), claiming that these filings “disregard the procedures set up by the Commission to ensure due process and the orderly presentation of argument.”
Samsung also disputes Apple’s statement that Samsung’s conduct was more “egregious” than the conduct that gave rise to the N.D. Cal. injunction, claiming that this assertion is “inaccurate and misleading”. Although the specifics are redacted, Samsung casts Apple “mischaracterization” of Samsung’s conduct as a “thinly-disguised attempt” to muddy the issues in the investigation.
Finally, Samsung takes issue with Apple’s reliance on the dispute between Ericsson and Samsung (where Samsung has asserted FRAND-related defenses in response to Ericsson’s claims of infringement). Samsung argues that unlike here — where Apple allegedly “has demonstrated that it has no intention of paying anything to Samsung” — Samsung “has always been willing to negotiate a license for Ericsson’s declared-essential patent portfolio.” Because the Samsung-Ericsson scenario involves a different set of facts and circumstances, Samsung asserts, there is no inconsistency in Samsung raising FRAND-based defenses there while simultaneously maintaining that Apple’s FRAND-based defenses should fail.
Come Friday, we just might at long last get some clarity from the ITC.