On October 8, Bloomberg reports Samsung Loses Bid for Obama Veto of Apple-Won Import Ban. The administration vetoed Samsung's ITC ban, and now the reverse? Is the Obama's administration siding with an American company over a Korean one? It is not completely unreasonable to wonder after reading this article, because it is not that clear.
Even if the Obama administration was right to veto Samsung's ITC ban but not Apple's, it should explain how the different facts drove the different results.
Mr. Edward Black, president of the Computer & Communications Industry Association, which counts Samsung and Google as members, claims the veto of the Apple import ban was based on political pressure and favoritism, which sounds plausible, but was not supported by evidence discussed in the article.
For more details Apple's patent infringement case against Samsung is "In the Matter of Electronic Digital Media Devices, 337-796, and Samsung’s case is In the Matter of Electronic Devices, Including Wireless Communication Devices, Portable Music and Data Processing Devices, and Tablet Computers, 337-794, both US ITC.
Copyright © 2013 Robert Moll. All rights reserved.
Showing posts with label ITC. Show all posts
Showing posts with label ITC. Show all posts
Wednesday, October 9, 2013
Saturday, August 10, 2013
ITC Excludes Samsung Products Infringing Apple Patents on August 9, 2013
On August 9, 2013, the ITC issued an order to exclude and a cease and desist order on the further importation, sale, and distribution of certain Samsung products because they infringe U.S. Patent No. 7,912,501, entitled, Audio I/O headset plug and plug detection circuitry, U.S. Patent No. 7,479,949 B2, entitled, Touch screen device, method, and graphical user interface for determining commands by applying heuristics.
The order is stayed for 60 days pending President Obama's review. That review is likely to be politically charged in view of the Obama Administration's veto of Samsung exclusion order last week. Perhaps the prior Administrations were wise to not interfere with ITC over the last three decades. Now that the Obama Administration has taken on the rarified role of "second guessing" the ITC, others may be justified in guessing whether or not this has anything to do with Samsung's status as a foreign company.
Copyright © 2013 Robert Moll. All rights reserved.
It was not a complete sweep for Apple given the ITC found no infringement of Design Patent No. D618678 that relates to the appearance of the iPhone, Design Patent No. D558757 that relates to the appearance of the iPod Touch and iPad, and US Reissue Patent No. RE41922, entitled, Method and apparatus for providing translucent images on a computer display. The ITC also found U.S. Patent No. 7,789,697, entitled, Plug detection mechanisms invalid as anticipated by the prior art.
The order is stayed for 60 days pending President Obama's review. That review is likely to be politically charged in view of the Obama Administration's veto of Samsung exclusion order last week. Perhaps the prior Administrations were wise to not interfere with ITC over the last three decades. Now that the Obama Administration has taken on the rarified role of "second guessing" the ITC, others may be justified in guessing whether or not this has anything to do with Samsung's status as a foreign company.
Copyright © 2013 Robert Moll. All rights reserved.
Saturday, August 3, 2013
Obama Administration Vetoes ITC's Ban of Older Apple iPhones and iPads
Today, the Obama Administration vetoed the International Trade Commission's (ITC) ban of Apple's infringement of Samsung's standard essential patent.
As background in June 2013, the ITC ordered a ban of AT& T's model of Apple's iPhone 3, iPhone 3GS, iPhone 4, the iPad 3G, and iPad 2 based on infringement of Samsung's U.S. Patent No. 7,706,348. Apple was faced with the ITC ban, an appeal to the Federal Circuit, or a request for the President to veto the ban. The last time a President vetoed an ITC order was in the 1980's so it seemed an appeal to the Federal Circuit was the likely next step.
However, U.S. Trade Representative Michael Froman decided to veto the ITC ban expressing the "concern that a ban on Apple's products would abuse Samsung's right to the essential patent, which involves encoding and decoding information on a CDMA cell phone network." Mr. Froman warned the ITC should carefully examine if a ban based on a standard essential patent serves the public interest before granting it. This is an unexpected setback for Samsung which now must seek a remedy in federal court.
For further details see Mr. Froman's letter explaining the decision and Older iPhones won't be banned as Obama Administration vetoes ITC decision.
Updated August 5: Obama administration may have overturned the ITC ban due to reasons presented in ITC commissioner Dean Pinkert's dissent. See CNN Money How the ITC forced a veto in the Samsung-Apple patent case. Also see FOSS Patents One ITC chief found Samsung to fail to offer Apple FRAND licensing terms to its UMTS patents.
Copyright © 2013 Robert Moll. All rights reserved.
As background in June 2013, the ITC ordered a ban of AT& T's model of Apple's iPhone 3, iPhone 3GS, iPhone 4, the iPad 3G, and iPad 2 based on infringement of Samsung's U.S. Patent No. 7,706,348. Apple was faced with the ITC ban, an appeal to the Federal Circuit, or a request for the President to veto the ban. The last time a President vetoed an ITC order was in the 1980's so it seemed an appeal to the Federal Circuit was the likely next step.
However, U.S. Trade Representative Michael Froman decided to veto the ITC ban expressing the "concern that a ban on Apple's products would abuse Samsung's right to the essential patent, which involves encoding and decoding information on a CDMA cell phone network." Mr. Froman warned the ITC should carefully examine if a ban based on a standard essential patent serves the public interest before granting it. This is an unexpected setback for Samsung which now must seek a remedy in federal court.
For further details see Mr. Froman's letter explaining the decision and Older iPhones won't be banned as Obama Administration vetoes ITC decision.
Updated August 5: Obama administration may have overturned the ITC ban due to reasons presented in ITC commissioner Dean Pinkert's dissent. See CNN Money How the ITC forced a veto in the Samsung-Apple patent case. Also see FOSS Patents One ITC chief found Samsung to fail to offer Apple FRAND licensing terms to its UMTS patents.
Copyright © 2013 Robert Moll. All rights reserved.
Tuesday, June 4, 2013
Samsung v. Apple - ITC Bans Importing and Selling AT&T iPhones 3, 3GS, and 4, and AT&T 3G Compatible iPads and iPads 2
Today, the ITC ruled Apple cannot import or sell AT&T compatible iPhones 3, 3GS, and 4, and AT&T 3G-compatible iPads and iPads 2 due to infringement of Samsung Electronics' U.S. Patent No. 7,706,348,which relates to encoding/decoding a transport format combination indicator in CDMA communications. Not sure if Apple sells these older products, but Apple plans to appeal to the Federal Circuit. Thanks to Alan Cooper for this news.
For details see CNN Money Apple banned from selling some iPhones and iPads after Samsung patent win
Also see FOSS Patents Here's the ITC letter instructing U.S. customs to start seizing older iPhones, iPads in 60 days
Copyright © 2013 Robert Moll. All rights reserved.
For details see CNN Money Apple banned from selling some iPhones and iPads after Samsung patent win
Also see FOSS Patents Here's the ITC letter instructing U.S. customs to start seizing older iPhones, iPads in 60 days
Copyright © 2013 Robert Moll. All rights reserved.
Tuesday, May 7, 2013
Subcommittee on Courts, Intellectual Property and the Internet - Hearing on Abusive Patent Litigation
In recent years, patents have become the subject of many Congressional bills. Because the House Judiciary Committee introduces many of the bills, it is a good place to look if you want an early sense where US patent law reform may go next.
Here is a recent hearing from the Subcommittee on Courts, Intellectual Property and the Internet on April 16, 2013: Abusive Patent Litigation: The Issues Impacting American Competitiveness and Job Creation at the International Trade Commission and Beyond.
If you review the statement of the Judiciary Committee Chairman Bob Goodlatte and the statements of the witnesses it suggests reasons why the SHIELD Act finds some support despite its apparent flaws.
Copyright © 2013 Robert Moll. All rights reserved.
Here is a recent hearing from the Subcommittee on Courts, Intellectual Property and the Internet on April 16, 2013: Abusive Patent Litigation: The Issues Impacting American Competitiveness and Job Creation at the International Trade Commission and Beyond.
If you review the statement of the Judiciary Committee Chairman Bob Goodlatte and the statements of the witnesses it suggests reasons why the SHIELD Act finds some support despite its apparent flaws.
Copyright © 2013 Robert Moll. All rights reserved.
Friday, January 11, 2013
InterDigital v. ITC and Nokia - Patent Licensing Satisfies Domestic Industry Required for ITC Relief
Yesterday, in InterDigital v. ITC and Nokia, the Federal Circuit held that non-practicing entity InterDigital's patent licensing alone met the domestic industry requirement of Section 337 of the Tarriff Act of 1930, 19 USC 1337(a)(2) and 1337(a)(3). The Federal Circuit also stated the statute does not require physical articles be made in the USA. This decision poses an obstacle to the effort to reduce the impact of non-practicing entity (NPE) lawsuits in the ITC. For more detail on the lobbying, see an earlier post: Lobbying to Block ITC from Hearing Non-practicing Entities
So I expect NPEs will continue to file lawsuits at the ITC seeking injunctive relief apart from EBay considerations until (1) the domestic industry requirement is rewritten, or (2) the SCOTUS reverses the InterDigital interpretation of the domestic industry requirement. But I don't expect many NPEs to successfully assert SEPs in the ITC given the ITC only grants exclusion orders.
Copyright © 2013 Robert Moll. All rights reserved.
So I expect NPEs will continue to file lawsuits at the ITC seeking injunctive relief apart from EBay considerations until (1) the domestic industry requirement is rewritten, or (2) the SCOTUS reverses the InterDigital interpretation of the domestic industry requirement. But I don't expect many NPEs to successfully assert SEPs in the ITC given the ITC only grants exclusion orders.
Copyright © 2013 Robert Moll. All rights reserved.
Wednesday, October 24, 2012
ITC Judge Decides Samsung Infringes Four Apple Patents
Today, Joe Mullin reports Samsung loses another big patent case to Apple, this time at ITC.
Mr. Mullin asserts the ITC judge's decision Samsung infringes four U.S. patents is "another sign Samsung is losing its global patent battle with Apple" and that the decision may result in a ban of Samsung products in 2013.
I am not so certain this much can be drawn from the ITC judge's decision. The ITC Commission must approve the ITC judge's decision, which may not happen. Even if approved, the Federal Circuit may reverse the Commission's decision. All the legal machinations give Samsung time to design around the Apple patents.
Apple and Samsung have many lawsuits around the globe. Apple has won some key battles, but recently lost in the Netherlands and in the UK. Even when Apple wins Samsung fights back: in Apple's victorious $1B case in San Jose, Samsung managed to get the Federal Circuit to reverse the entry of an injunction against the Samsung Galaxy Nexus. Samsung alleged jury misconduct that could cause a mistrial in San Jose. And just this month the PTO rejected all the claims of Apple's rubber band patent.
So I am not seeing signs Samsung is losing the global patent battle with Apple. Does it matter? Both companies have made and will continue to make great products. However, if Apple and Samsung let the patent battles affect their customer-supplier relationship, perhaps we will have losers: consumers who get less than the best products.
Copyright © 2012 Robert Moll. All rights reserved.
Mr. Mullin asserts the ITC judge's decision Samsung infringes four U.S. patents is "another sign Samsung is losing its global patent battle with Apple" and that the decision may result in a ban of Samsung products in 2013.
I am not so certain this much can be drawn from the ITC judge's decision. The ITC Commission must approve the ITC judge's decision, which may not happen. Even if approved, the Federal Circuit may reverse the Commission's decision. All the legal machinations give Samsung time to design around the Apple patents.
Apple and Samsung have many lawsuits around the globe. Apple has won some key battles, but recently lost in the Netherlands and in the UK. Even when Apple wins Samsung fights back: in Apple's victorious $1B case in San Jose, Samsung managed to get the Federal Circuit to reverse the entry of an injunction against the Samsung Galaxy Nexus. Samsung alleged jury misconduct that could cause a mistrial in San Jose. And just this month the PTO rejected all the claims of Apple's rubber band patent.
So I am not seeing signs Samsung is losing the global patent battle with Apple. Does it matter? Both companies have made and will continue to make great products. However, if Apple and Samsung let the patent battles affect their customer-supplier relationship, perhaps we will have losers: consumers who get less than the best products.
Monday, September 24, 2012
Intellectual Ventures Settles Memory Chip Patent Infringement Lawsuits with SK Hynix and Elpida Memory
The Wall Street Journal Law Blog reports Intellectual Ventures settled its memory chip patent infringement suits brought in late 2010 against Korean based SK Hynix and Japanese based Elpida Memory in the ITC and Western district court of Washington.
For details see as follows: Intellectual Venture Reaches Patent Deal with Chip Makers
Copyright © 2012 Robert Moll. All rights reserved.
For details see as follows: Intellectual Venture Reaches Patent Deal with Chip Makers
Copyright © 2012 Robert Moll. All rights reserved.
Sunday, July 22, 2012
Google's Patent Strategy - Some of Apple's Patented Inventions Are De facto Standards
John Paczkoski's Some Apple Inventions Are So Great They Ought To Be Shared explains Google's and Apple's respective patent strategies. I found Google's patent strategy interesting in view of the on-going discussions regarding remedies available for infringement of standard essential patents in the ITC.
As most readers know, Google paid $12.5 billion for Motorola Mobility obtaining many standard essential patents (SEP). Apple may be concerned that Google's strategy is to enforce the SEPs to get a cross-license to Apple's commercially successful non-SEP patents on the iPhone.
Apple and Google's GC's have now staked out positions on how their respective patents should be viewed before the Senate Judiciary Commitee.
Google's GC Kent Walker's letter to the Senate Judiciary Committee argues "proprietary non-standardized technologies that become ubiquitous due to their popularity with consumers should be considered de facto standards."
Apple's GC Bruce Sewell responded in a letter to the Senate Judiciary Committee: "That a proprietary technology becomes quite popular does not transform it into a ‘standard’ subject to the same legal constraints as true standards."
As Mr. Paczkoski states: "Standardized technologies facilitate interoperability among disparate devices by giving them the same core functionality. They create a platform for competition. Non-standardized technologies differentiate those devices, create competition and drive innovation in the marketplace. Subjecting non-standards-essential patents to the same rules as those governing standards-essential ones will hamper innovation and harm consumers."
In my view, if a U.S. patent is not encompassing an industry standard, commercial success should not subject the patent to FRAND and limit a patent owner's rights to an injunction. Otherwise, free riders will eliminate the incentive to spend resources to innovate.
Copyright © 2012 Robert Moll. All rights reserved.
As most readers know, Google paid $12.5 billion for Motorola Mobility obtaining many standard essential patents (SEP). Apple may be concerned that Google's strategy is to enforce the SEPs to get a cross-license to Apple's commercially successful non-SEP patents on the iPhone.
Apple and Google's GC's have now staked out positions on how their respective patents should be viewed before the Senate Judiciary Commitee.
Google's GC Kent Walker's letter to the Senate Judiciary Committee argues "proprietary non-standardized technologies that become ubiquitous due to their popularity with consumers should be considered de facto standards."
Apple's GC Bruce Sewell responded in a letter to the Senate Judiciary Committee: "That a proprietary technology becomes quite popular does not transform it into a ‘standard’ subject to the same legal constraints as true standards."
As Mr. Paczkoski states: "Standardized technologies facilitate interoperability among disparate devices by giving them the same core functionality. They create a platform for competition. Non-standardized technologies differentiate those devices, create competition and drive innovation in the marketplace. Subjecting non-standards-essential patents to the same rules as those governing standards-essential ones will hamper innovation and harm consumers."
In my view, if a U.S. patent is not encompassing an industry standard, commercial success should not subject the patent to FRAND and limit a patent owner's rights to an injunction. Otherwise, free riders will eliminate the incentive to spend resources to innovate.
Copyright © 2012 Robert Moll. All rights reserved.
Thursday, July 19, 2012
Bessen & Meurer - The Direct Costs from NPE Disputes
Bessen & Meurer The Direct Costs from NPE Disputes claims companies accrued $29 billion in costs due to non-practicing entity (NPE) disputes in 2011. This article was published June 28, 2012, and just before the hearing this month to limit NPE's access to the ITC. Well what can I say? Nice timing guys.
Copyright © 2012 Robert Moll. All rights reserved.
Copyright © 2012 Robert Moll. All rights reserved.
Monday, July 16, 2012
Academics Supporting Senator Leahy Questioning Injunctions on Standard Essential Patents
Here's an academic paper RAND Patents and Exclusion Orders: Submission of 19 Economics and Law Professors to the International Trade Commission that supports Senator Leahy Questions Whether Injunctions Should Be Granted on Standard Essential Patents.
Copyright © 2012 Robert Moll. All rights reserved.
Copyright © 2012 Robert Moll. All rights reserved.
Wednesday, June 13, 2012
HTC v. Apple - ITC Dismisses Five "HTC" Patents
FOSS Patents had an interesting article: ITC doesn't allow HTC to assert Google's patents against Apple -- Rent-a-Patent model fails. Apple's opening move? HTC, you don't have the right to sue! How embarrassing it must be to hear the judge agree. Specifically, Apple filed a motion that eliminated five of eight patents HTC asserted against Apple in the ITC. The administrative law judge (ALJ) ruled HTC lacked standing (the right to sue) because Google failed to transfer "substantial patent rights" to HTC.
Mr. Mueller suggests the dismissal impacts the HTC v. Google ITC proceeding and the patent aggregators. The first point is right, but patent aggregators shouldn't see a standing issue if they take action based on what can be learned from this case.
As to the HTC v. Apple ITC proceeding, Mr. Mueller notes that (1) Apple is unlikely to have to defend itself against the five dismissed patents, (2) an appeal against this dismissal is unlikely to succeed, and (3) Google could join as a complainant with HTC, but this would escalate the Apple-Google conflict. Further, Mr. Mueller notes that Google was not making phones at the time the complaint was filed so may not be able to join as it would not satisfy the domestic industry requirement.
Mr. Mueller suggests the limitations and restrictions in Google's agreement show Google's support for the Android ecosystem has "clear limits." I don't have a copy of the agreement, but Mr. Mueller must be kidding about the clear limits!
As to patent aggregators, Intellectual Ventures and RPX allow their members to "check out" a patent in order to bring a counterclaim. Mr. Mueller suggests this may raise standing issues, but amending the language of the agreement to transfer substantial rights should eliminate any standing issue as long as the patent is not already in litigation.
Copyright © 2012 Robert Moll. All rights reserved.
Mr. Mueller suggests the dismissal impacts the HTC v. Google ITC proceeding and the patent aggregators. The first point is right, but patent aggregators shouldn't see a standing issue if they take action based on what can be learned from this case.
As to the HTC v. Apple ITC proceeding, Mr. Mueller notes that (1) Apple is unlikely to have to defend itself against the five dismissed patents, (2) an appeal against this dismissal is unlikely to succeed, and (3) Google could join as a complainant with HTC, but this would escalate the Apple-Google conflict. Further, Mr. Mueller notes that Google was not making phones at the time the complaint was filed so may not be able to join as it would not satisfy the domestic industry requirement.
Mr. Mueller suggests the limitations and restrictions in Google's agreement show Google's support for the Android ecosystem has "clear limits." I don't have a copy of the agreement, but Mr. Mueller must be kidding about the clear limits!
As to patent aggregators, Intellectual Ventures and RPX allow their members to "check out" a patent in order to bring a counterclaim. Mr. Mueller suggests this may raise standing issues, but amending the language of the agreement to transfer substantial rights should eliminate any standing issue as long as the patent is not already in litigation.
Copyright © 2012 Robert Moll. All rights reserved.
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Friday, March 9, 2012
Bankruptcy Judge Bars Apple's Patent Suit Against Kodak
Today, the media gave lots of coverage to the bankruptcy judge's ruling to bar Apple's patent infringement suit against Kodak. It's appears to be an act of mercy, but could complicate assessing the value of Kodak patents since Apple may have a legitimate claim for joint ownership. Here's links to articles giving the details below:
Copyright © 2012 Robert Moll. All rights reserved.
Monday, February 27, 2012
Lobbying to Block ITC from Hearing Non-practicing Entities
When I worked at Wilson Sonsini Goodrich & Rosati in 1993 -1998, I met Barney Cassidy. Barney is a Harvard Law graduate and was a well respected, busy, and well liked attorney at WSGR. Where is he now? Barney Cassidy is General Counsel at Tessera Technologies, Inc., which develops, and patents next-generation electronic devices and related packaging. Tessera has become an important voice in Silicon Valley that believes the US patent system is valuable and under attack by special interests.
In Follow the Money - Will the ITC Lose its Patent Jurisdiction? Barney discusses the ITC Working Group's lobbying effort to (1) keep the ITC from hearing non-practicing entities patent infringement cases, and (2) weaken the ITC's ability to block importation of infringing products. Who are members of the ITC Working Group? Apple, Avaya, Broadcom, Cisco, HP, Intel and Oracle.
It's best to read Barney's article, but Barney's point is high tech companies have an interest to prevent NPEs (e.g., Universities, independent inventors, and companies who do not manufacture all they patent) from accessing the ITC. Yet preserving the NPE's right to seek ITC enforcement is in America's interest. I am not happy with all the patent infringement actions filed in the ITC, but agree all patent holders deserve the right to file a complaint in the ITC and have it considered on the merits. I know from personal experience that sometimes the companies patents are ahead of the market. Later the company makes what is described in the patent. Should we exclude that company before it begins manufacturing? As Barney asks would we block one of America's most prolific inventors Thomas Edison from filing in the ITC, because he was a non-practicing entity?
Copyright © 2012 Robert Moll. All rights reserved.
Copyright © 2012 Robert Moll. All rights reserved.
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