On Friday, the U.S. Department of Justice (“DOJ”) announced that it was closing its investigation into Samsung’s use of standard essential patents, which investigation had “focused on Samsung’s attempts to use its SEPs to obtain exclusion orders from the [ITC] relating to certain iPhone and iPad models.” DOJ stated that further investigation was no longer needed given U.S. Trade Representative Michael Froman’s disapproval last year of an exclusion order in the ITC’s investigation of Apple’s infringement of Samsung’s SEPs (see our Aug. 3, 2013 post).
Samsung’s Proactive European Proposal. DOJ states that its “Antitrust Division has worked closely and consulted frequently with its colleagues at the European Commission,” which raises the question whether DOJ took comfort in Samsung’s recent European activities. Recall that the European Commission is considering Samsung’s proactive proposal in response to a competition investigation that, during the next five years, Samsung would not seek injunctive relief within the European Economic Area (EEA) on SEPs in the field of mobile communications against companies that agree to a particular framework for determining fair, reasonable and non-discriminatory (FRAND) licensing terms either by agreement, by court determination or by arbitration (see our Oct. 18, 2013 post). Samsung made this proposal on Sep. 27, 2013, several weeks after USTR Froman’s Aug. 3, 2013 disapproval of the exclusion order Samsung was awarded against Apple. Further, Samsung’s proposal to the European Commission is similar to the consent decree entered between the U.S. Federal Trade Commission and Google/Motorola to settle an investigation about Motorola’s assertion of SEPs (see our July 24, 2013 post).
Samsung’s Cross-Licensing. In addition to the European activity, Samsung recently entered into cross-license agreements with at least Google and Cisco. Perhaps recent successful cross-licensing of Samsung’s patents by sophisticated companies through bilateral negotiations gave DOJ further comfort in ending its investigation.