Editor in Chief
- Jul 27, 2011
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Over the weekend, the big news in the mobile world was that President Obama stepped in and over-turned the ITCs import ban on several Apple products. Previously, Samsung had won a victory over Apple in the ITC showing that Apple had infringed upon some of its patents. This resulted in an import ban on the iPhone 4 and the iPad 2, and would have meant that Apple could no longer sell these devices in the USA.
This was a big victory for Samsung, and the deadline for Apple to either fix the infringement or face the final import ban had come. At the last second President Obama reversed the ruling, and while this is not the forum to debate the politics of his action, several industry analysts have pointed out that he actually had a valid reason to do so.
As it turns out, when the ITC commission finally ruled, they were not in full agreement. One ITC commissioner, Dean Pinkert, made the assertion that the infringed patents in question were actually standards essential FRAND (fair, reasonable and nondiscriminatory). He also asserted that Samsung didn't handle these patents fairly with Apple, thus his colleagues at the ITC shouldn't have issued the import ban.
There are several reasons why this matters, and here is a quote below with the details,
An opinion filed by ITC commissioner Dean Pinkert that was initially redacted when ITC documents related to the case were released outlines several reasons that his colleagues were wrong to issue the ban. From Fortune:
In other words, Samsung used standard-essential patents in its claim against Apple. This, of course, is not how the system works. According to Pinkert, Samsung tried to force Apple to license the companys non-essential patents in order to get a standards-essential patent license from Samsung. For that reason, President Obama stepped in and stopped the impending ban.
- The patent in question was part and only a tiny part of an international standard, and as such Samsung had agreed to make it available for licensing under terms that are fair, reasonable and nondiscriminatory (FRAND).
- Samsung had made no effort to demonstrate that the licensing terms it offered Apple satisfied an objective standard of reasonableness.
- That the only time Samsung made such an offer in oral discussions in December 2012 it came with strings attached to which Apple could not agree.
- What those strings were are blacked out in the document, but Pinkert adds in the next sentence: it is neither fair nor non-discriminatory for the holder of the FRAND-encumbered patent to require licenses to non-FRAND-encumberd patents as a condition for licensing its patent (emphasis his).
As you can see, the facts of the matter make the picture a bit clearer. Of course, it's possible that behind the scenes all of this was motivated by money and power, which is most often the case in politics. Regardless, it seems like the right thing was likely done in the end.
Lately, there are many scholars including technical experts, judges and economists, who have called for the end of software patents. They make the valid argument that software patents only slow innovation rather than protect it. What do you think? Does the patent system need an overhaul?