Today, U.S. Trade Representative (USTR) Michael Froman issued his long-anticipated decision regarding the U.S. International Trade Commission’s exclusion order in ITC Inv. No. 337-TA-794 involving Samsung and Apple. And as you may have heard by now, the verdict is…
The exclusion order has been “disapproved of” — i.e., overturned, vetoed, not going to go into effect.
Ambassador Froman’s letter to ITC Chairman Irving Williamson informing the ITC of the disapproval states that the decision does not represent an endorsement or criticism of the Commission’s analysis, but is instead based on policy considerations as they relate to the enforcement of standard-essential patents, competitive conditions in the U.S. economy, and effects on U.S. consumers. (Although, as we’ve noted previously, the issue of whether the patent was actually essential to the standard at issue — i.e, an SEP — was not actually resolved by the Commission). The USTR did note that there may be cases in which an exclusion order is an appropriate remedy for infringement of a FRAND-encumbered SEP, that he is looking forward to development of appellate case law on this issue (for instance, perhaps in the Apple-Motorola Fed Circuit appeal), and that FRAND-encumbered SEP holders could seek monetary damages in court. But all of that is probably of little consolation right now for Samsung; Ambassador Froman’s decision is the final word on this case — under current Federal Circuit law, his disapproval of the exclusion order is not appealable.
Although the letter announcing the decision is short, there’s obviously a lot to take away from a decision of this nature — which, as we’ve noted before, hasn’t happened in over 25 years. We’ll be back tomorrow or Monday with a follow-up post doing a deeper dive into this case. And we are also sponsoring a webinar this coming Wednesday, during which this Samsung-Apple case will certainly be a hot topic of discussion.