Recently, the ITC ruled in favour of Samsung, issuing an exclusion order against certain Apple products, barring them from being sold in the US. Several people have called upon president Obama to step in and overrule the decision (e.g. this guy) – however, not only would this set a very bad precedent for non-US companies, it would also simply be incredibly unfair if you actually look at the ITC ruling itself. Because of this, it is quite unlikely that Obama will step in.
The basic premise of the case appears to be simple: Apple is infringing on what Apple itself calls a FRAND-patent owned by Samsung. The ITC then ruled in favour of Samsung, issuing the exclusion order. Since we’re supposedly talking about a FRAND-patent, that would seem strange, right?
Well, no, not exactly. First and foremost, the ITC states in its ruling that Apple has not actually been able to prove that the patent is standards-essential in the first place, and thus, it cannot invoke the FRAND claim at all. On top of that, even if Apple had been able to prove the patent is a FRAND one, the ITC found that Apple was unable to prove that the ITC could then not issue an exclusion order.
As to waiver of exclusionary relief, the Commission found that Apple failed to cite to any case showing that the ITC lacked jurisdiction over cases involving FRAND-pledged SEPs (or where it declined to issue a remedy on a similar basis). The Commission also faulted Apple’s proof of the elements of a contractual defenses (i.e., parties, offer, acceptance, consideration, terms) ^aEUR” let alone the specific contractual obligations that flow from Samsung’s FRAND commitments. Additionally, the Commission found that there were still disputed issues concerning the patent at issue was even actually essential to the standard (and therefore whether a FRAND or disclosure obligation applied at all).
However, it gets worse than that for Apple. The ITC reviewed the negotiation history and materials between Samsung and Apple, and found that Samsung’s offered licensing terms were reasonable, fair, and non-discriminatory. In other words, Samsung offered Apple FRAND licensing terms for the patent in question, but Apple simply refused to accept them.
Rizzolo:
The Commission analyzed the history of negotiations between Apple and Samsung (this portion is heavily redacted) to see if Apple showed that Samsung failed to negotiate ^aEURoein good faith,^aEUR and found that Apple failed to do so. Notably, the Commission dismissed Apple’s arguments that (1) Samsung’s initial offer was so high as to show bad faith, and (2) Samsung’s attempts to get a cross-license to Apple’s non-SEPs violated its FRAND commitments.
Especially point 2 is interesting, as I’ve brought this up in comments before. Asking for a cross-licensing deal is not a violation of FRAND commitments, as some have often argued. In fact, cross-licensing has been a core aspect of the mobile industry, long before Apple joined the scene in 2007. Apple is the one usually unwilling to cross-license, but that unwillingness seems to come back to bite them in the ass now.
It’s pretty clear from the ITC ruling that Apple is simply in the wrong, and has been infringing upon this particular patent for a long time now – without paying Samsung a single dime. In the words of the people defending Apple so heavily in the Apple vs. Samsung trial – Apple is stealing Samsung’s technology, and they should be punished for doing so.
On top of that, if the Obama administration were to veto the exclusion order, it would send a very negative message to non-US companies operating within the United States. It would send the message that a US company can break the law all it wants – as Apple is clearly doing here – because the president will have its back anyway.
Combine these two factors – the ITC’s case against Apple is well-argued and it would set a bad precedent – and it becomes clear that it seems highly unlikely that the Obama administration will intervene.
A full throated defense of the patent system when Samsung is the one granted exclusion orders. Why am I not surprised.
It’s not a defense at all. I never once said I agree with the exclusion order – in fact, I think it’s ridiculous.
However, and I tried to explain this to you before, if Apple abuses the patent system with crappy software patents as an aggressor, then sure as hell the attacked get to defend themselves.
If I punch you, I sure shouldn’t be crying if I get one in return.
It’s not a software patent.
Oh come on. Apple gets an exclusion order there’s melodrama and sarcastic sniping about “free market at work”.
Samsung gets one and there’s rationalizations a page long. Give me a break.
As usual you play your semantic game and hide from the spirit of your post.
If you’re the only one among many claiming grass is purple, you might consider the possibility you are wrong.
Logical fallacy. I’m not saying your reasoning is wrong, it may very well be right. I’m noting your difference in tone and wording when it comes to Samsung and Apple.
Samsung gets a legal justification from you, Apple gets snide remarks.
Of course Samsung gets that. It’s called siding with the victim of a broken system.
Apple is the aggressor. Samsung the victim. People tend to side with ones who have been treated unjustly.
“Apple is the aggressor. Samsung the victim.”
You are obviously assuming here that Apple claims are all baseless, otherwise Apple would be the victim and Samsung the aggressor fighting back at the victim.
But in this case, you are encouraging using a gun (SEP patent which is unavoidable) to fight back an aggressor which attack you with a stick (Apple’s patent have simple workaround). Too bad you are not an US citizen: you would have done a nice republican from Texas).
Sigh. The frothing at your mouth makes you unable to read, apparently.
This is not, I repeat, this is not about a SEP patent. Did you even open the article at all?
Your claimed opinion does not make something a fact. Especially given that you’ve told really obvious falsehoods several times, both in the article itself and in the comments here. (EG: you’re assuming your audience isn’t aware of the history of these cases and so you can claim Apple is the aggressor.) Or you just don’t care what the truth is.
If you want to convince people this isn’t a standards essential patent, please explain– or better yet, give examples– of someone implementing the given standard without violating it.
Of course to do that, you’d have to actually understand the technology…. and in my experience with patent discussions on the internet, people usually make claims with no understanding of any technology at all. (It’s much easier to not be bothered by pesky facts.)
So, prove it.
The article is about a lawsuit based on SEP patents: you don’t want to take this fundamental aspect into account because it doesn’t fit your agenda.
If many ask Obama to veto the ruling (including the FTC, Intel, Verizon and a few other major actors), it is only because we are talking about FRAND patents.
So yes, it is all about SEP and FRAND and the fact that you consider this point as meaningless is… meaningless.
And Apple problem is not about paying a fair, reasonable and non-discriminatory fee to Samsung, it is about the fact that what Samsung is asking is neither fair, reasonable nor non-discriminatory.
Just in case you miss the point: there are something like 2000 patents in the 3G pool alone belonging to dozens of patent holders. Can you explain why Apple was willing to take a license from all these patent holders, including Samsung for the Qualcomm chip in the newest iPhones and iPad models and was not willing to take a license from Samsung on older chips?
Edited 2013-08-01 14:31 UTC
Uh, the ITC states in its ruling that this is NOT a SEP patent!
Now you’re just lying.
You wrote “The ITC reviewed the negotiation history and materials between Samsung and Apple, and found that Samsung’s offered licensing terms were reasonable, fair, and non-discriminatory. In other words, Samsung offered Apple FRAND licensing terms for the patent in question, but Apple simply refused to accept them.”
Why would the ITC reviewed this point and why would Samsung have offered FRAND terms to Apple if those patents are not SEP?
You wrote: “the Commission found that there were still disputed issues concerning the patent at issue was even actually essential to the standard”
Which imply that this is not a fact, only a doubt. Who is lying?
And please, answer to the question: why didn’t Samsung ask the same terms to Apple for the new Qualcomm chips?
Edited 2013-08-01 14:37 UTC
The burden of proof was on Apple. They failed to prove that the patent was, in fact, a SEP. Hence, it is not a SEP.
If I claim you are a murderer, but I fail to convince the judge that you are a murdered, then you are not a murderer. Very basis stuff that we Dutch learn in elementary school.
I feel like I’m talking to a child.
Because those are… Different chips, a different situation, a different time, and so on, and so forth. Stop trying to muddy the waters with irrelevant crap.
“The burden of proof was on Apple. They failed to prove that the patent was, in fact, a SEP. Hence, it is not a SEP. ”
This is ridiculous.
When defining a standard, is it up to the patent holder to declare his patent belong to the standard, in which case it is added into the standard’s patent pool.
The problem is that apparently the patent holder do not have to give the exact list of patents involved, which is absurd I would say.
Anyway, Samsung has sued Apple on 3G patents in many countries and they apparently proposed Apple what they considered as FRAND terms for those patents. Why would they enter into FRAND discussion with Apple for non-SEP?
You are a bling hater. I give up at this point: you don’t want to understand the complexity of the situation.
According to the ITC, this is exactly Apple’s problem.
Uh, according to the ITC, it IS fair. Why do you keep lying?
First you say this is not a SEP patent, then you are arguing about FRAND terms?
I like your “flawgic”.
The ITC considered that the terms were FRAND, which is an opinion, not a fact (because other european countries have ruled otherwise FYI). They thus ruled against Apple and granted Samsung a ban, which is the only real issue many have as they consider a ban should never be granted based on SEP patents. Because they are unavoidable.
So the Obama administration is asked by some to veto the ban. Nothing more, nothing less. It is not about ruling that Apple doesn’t have to pay anything, it is ONLY about the ban.
You are refusing to see the complexity of such lawsuit, including the complexity concerning what is FRAND and what is not.
And you are refusing to see how dangerous this ruling could be for consumers. The first ban in history based on a SEP patent which could open the Pandora box and give ideas to some companies trying to monetize their SEP patents.
THE PATENT IS NOT A SEP.
I’m talking to a brick wall here. I cannot conclude other than that you simply cannot read.
Kinda makes you think though, right? About that other Samsung article about paid posts…
Apple is the innovator who created the smartphone market. Samsung is the copy cat who, rather than spend time actually innovative, copied them.
How can you say Apple is the “Aggressor”? It’s simply dishonest.
Apple even offered to license the patents to samsung when they were caught copying. Samsung refused and they went to court.
Is it Apple apologist day?
That might be true if time moved backwards, with the Iphone appearing before the smartphone market that actually preceded it (along with all of the touchphone prior art). Unfortunately, such a scenario only exists in the reality distortion field.
If you think that Apple invented any new things, please specifically list them for review.
Do you refer to Apple’s numerous patents for things obvious and already entrenched, such as rounded rectangles and “pinch-to-zoom” (a patent which was just recently rejected: http://www.pcworld.com/article/2045461/us-patent-office-rejects-cla… )?
Sony^aEURTMs p800 says hi from 2002.
OK – here are a few very simple question.
Do you think that Samsung copies the designs of other successful companies as an important part of it’s core business strategy?
Do you think that Samsung’s copying has been highly focussed on Apple in recent years because of the latter’s product successes?
If you do think Samsung copies do you then think that degree of copying by Samsung has sometimes gone too far?
Do you think the use of Standard Essential Patents (SEPs ) as a weapon in legal actions is ever justified?
No. Samsung copies, just as every other company – including Apple – does. To say that it’s a “core part” of their strategy is idiotic.
See above. No.
No.
This specific case is not about a SEP.
Even if it was – yes, it can be justified, as I’ve explained. In cases where FRAND terms are offered, but the company seeking licensing does not accept them – as Apple has done here, according to the ITC – then yes, this is most certainly justified.
Counterquestion.
If proper FRAND terms are offered for a SEP, but they are not accepted, should the patent holder just bend over and take it? Because THAT would mean the end of the FRAND system. Why pay when you can just use the technology for free, without fear of legal repercussions?
I think you are wrong about the role of copying in Samsung’s strategy but I suspect we will never find any common ground on that.
The FRAND/SEP issue is another matter. I think that if a company offers up some technical IP to be included in a standard it takes on a responsibility to offer that IP in a fair and non-discrimantory way. That means it must offer to anybody who wants one a license to use that IP on the same broad basis as everybody else has been offered. Essentially no charging more than other people pay and no using the SEP patents to strong arm other companies into cross licensing if they happen to have desirable IP. There is similarly a responsibility for those seeking a license to accept one that is on the same broad basis as has been offered to other companies, in other words to pay the going rate.
In particular seeking FRAND/SEP licensing terms based on a percentage of a final products value (as Samsung has sought to do) seems to me to be a breach of the whole principal that standard licensing is based on. If as an example there is a SEP patent held for some essential part of the telephonic functioning of a handset then that should be available for a certain rate to all comers and it would be wrong to make some customers pay a percentage of the final handset price.
You may not like patents and IP law or Apple’s track record in all of this but I would argue that if you are remotely concerned with establishing open standards and interoperability, which I think you are, then you should openly condemn any abuse of the SEP/FFRAND system. If SEP patents holders are allowed to play a game with those patents in order to further their competitive position in any way (even if they find a way to do it which is technically legal) then that sort of abuse only has one outcome. The collapse of open standards. Nobody will trust any SEP holders ever again.
I am surprised you don’t seem to see that. I suspect that if the roles of Apple and Samsung were reversed in this case your position would reverse.
Except, as the ITC has noted in this ruling, asking for cross-licensing is perfectly possible within FRAND – no matter how many times you say it isn’t. It has been the standard practice in this industry for a long time, and Apple, as a newcomer, should have just accepted that. It would, in fact, have been *discriminatory* of Samsung to somehow not ask that of Apple, while they have been asking that of others.
You didn’t address my question though, but then, that’s nothing new. So, I ask you again: what if perfectly fine FRAND terms are offered, but the potential licensee refuses to accept them but uses the technology anyway (as Apple has done here)? Should companies then just bend over and take it, and not do anything? Or, should FRAND patents be freely available for everyone, at no cost, as Apple seems to think they are?
Why don’t you want to answer that question?
Edited 2013-08-01 20:52 UTC
I thought I had. Companies should pay the generally acceptable going rate for FRAND patents and not use them without paying unless unacceptable rates have been demanded in which case they should refuse and seek legal redress. When Apple entered into a cross patent agreement with both HTC and Microsoft both parties agreed not to copy each other^aEURTMs products. I suspect it’s something like that which is what prevented a similar agreement with Samsung, can you imagine Samsung agreeing not to copy Apple products?
No, you haven’t, and you still haven’t. You skirt around the issue so I’m going to try one more time.
If Samsung offered FRAND terms (ITC says they did), but Apple refused them (ITC says they did), yet continued to use the technology in question (as the ITC says they did) without paying (as the ITC says they did), should Samsung then not be allowed to sue Apple? Or should SEPs be free for the taking, without legal consequence?
A simple yes or no will suffice.
Edited 2013-08-02 07:24 UTC
Earlier you wrote:
“Sigh. The frothing at your mouth makes you unable to read, apparently.
This is not, I repeat, this is not about a SEP patent. Did you even open the article at all?”
Is or isn’t it about SEP? A simple yes or no will do.
We are dealing with a hypothetical situation. Please read the entire thread before jumping on my back.
And lose the element of surprise? NEVER!
If you think that Samsung copied Apple, please list for review the specific things that Samsung allegedly copied.
You’re confused about who the aggressor is.
When Apple announced the iPhone, both Google(aka Motorola) and Nokia started to see dollar signs and both companies sued Apple. They sued Apple patents that are “crappy software patents” that were also given as part of basic cellular standards that they promised to licensed under FRAND terms.
That is what started the mobile patent wars- Nokia sued first, then Google did.
Secondly, when Apple has sued companies, it has not been over “crappy” software patents, but over patents on fairly fundamental aspects of a completely new invention: Multi-touch interaction. (Yes there were primitive touch systems before, but that doesn’t mean Apple didn’t invent anything new.)
Apple is not abusing the patent system. It is trying to defend genuine innovations against aggressors who are abusing it to try and use FRAND pledged patents to get away with stealing genuine innovations.
Apple’s using the patent system as it was intended– for defense. Google and Samsung are using it for offense. (Nokia offered Apple FRAND terms eventually and they settled.)
Even in Samsung’s case, Apple offered to settle with Samsung, rather than go to court, but Samsung was not interested.
It’s really unfortunate that Google apologists feel they can rewrite the history to pretend like Apple is the aggressor. And they tell each other this over and over and over again…. probably because, in your heart you know it’s false.
But you should recgonize your need to re-write this history is proof that your interests are not in the truth, but in pushing an ideological agenda. ( And today’s android zealots are the windows apologists who would say “the mac sucks because windows has %99 marketshare” back in the day.)
I guess some people just hate innovative companies. That’s fine, don’t buy Apple products.
But when you start committing fraud by lying about the situation, that’s not fine.
The history here is no in dispute. So, why lie?
I know you^aEURTMre a new account as of yesterday^aEUR| so I^aEURTMll give you the benefit of the doubt. For people that have been using smartphones for the last decade, and watching the technology sphere for longer, your history is absolutely incorrect.
You haven^aEURTMt read the article above because you^aEURTMre still insisting Apples narrative of the events is gospel truth, it is not.
And please, keep it pleasant in the comments section.
Why is it that quite often when you open your mouth the air is filled with the stench of bullshit?
Are you asking me to explain your own opinion to you? What’s the point of your comment?
The why should Samsung product get banned when Apple product should not.
I’ve think that Apple already gained ban on multiple Samsung product in Europe (probably Germany). And has requested ban of multiple Samsung product in the US as well.
While I agree that most patents are nonsense, nobody seem to move away from it.
I see no defense the patent system, it is implied that if Apple wanted to play the patent game, it also had to solve its licencing . Samsung is only playing by the same rules as Apple here (speaking of copycat), and using the same weapons.
I feel no sympathy for either of the companies (disclosure : neither of them have gifted me with anything of value superior to 5$, and I don’t own share nor interest in any of those), although I am more annoyed by Apple fans than Samsung fans.
No, the patent system is completely broken and there not much anyone can do to fix it.
I doubt that many here disagrees with this statement.
However, given the fact that Apple more-or-less tried to bully Samsung out of the mobile market by using stupid design and utility patents – throwing the first punch (or 1,000 of them), I can’t say that I’ll shed a single tear if/when Samsung (somehow) manages to pummel Apple into the ground.
As the saying goes, does who live by the sword, die by the sword.
– Gilboa
Edited 2013-08-01 11:46 UTC
The thing that’s broken about the patent system is that it doesn’t effectively protect innovators.
The discussion of patents, however is completely broken because people represent gunuine innovation as if it were trivial.
Just because Google copied it, doesn’t make the original innovation obvious.
No, the system is completely broken because:
(Long breath)
1. It lacks any method to truly validate patents.
2. It has zero standards on what can be considered trivial patent.
3. Patent offices are either completely incompetent or severely under-budget (usually both).
4. The system favors huge cooperation over small players.
5. There’s no requirement on having a *working* implementation.
… and I can continue.
And then there’s this document [1].
Sure, because “bounce notification” and “home button” design patents are as complex and as innovative as micro-processors and LTE wave modulation.
See above.
– Gilboa
[1] http://lwn.net/Articles/467249/
Edited 2013-08-01 15:14 UTC
What goes around comes around. Apples time to bite the dust, the thing is that they will not be able to make changes to address them, they will have to settle by opening the war chest. I think all of this sales blocks enforced by more than questionable software patents are statements of a necessary USTPO revamp.
I think that stock holders should somehow express their saying regarding these companies legal splurge campaigns that do not necessarily correlate to people buying more of their products each time they score some ban here or there. Price wars benefit the consumer not legal ones
“they will have to settle by opening the war chest.”
No.
If granted, the ban only concern some (and not all) iPhone 4 and iPad 2 which will be soon replaced by new products.
Funny to notice that more recent products are not concerned: could someone explain me, if Apple is so willingly stealing Samsung technology, why did they accept to pay Samsung when they use a recent 3G chip model and not when they use an older model?
“Apple’s newest generations of the iPhone 5, iPhone 4S and specific iPhone 4 models are not affected by the ban because they use Qualcomm baseband chips (as part of a third-party licensing agreement with Samsung).”
http://www.dailytech.com/ITC+Favors+Samsung+in+3G+Patent+Suit+Bans+…
So why did Samsung choose to apply a special licensing agreement for Apple for older 3G chips? Why didn’t they do the same for newer Qualcomm chips?
I think some here prefer not to understand what is really involved in this lawsuit and in all SEP patent lawsuits in order to be able to see Apple as the bad guy.
Edited 2013-08-01 13:18 UTC
It is simple, Qualcomm is the one licensing the technology from Samsung for all its clients.
The chip maker for iPhone 4 had not done this, and also apple refused to license it.
Remember, Nokia and Google (motorola) are the ones who started this war by suing Apple. Apple’s not the aggressor.
Further, Apple actually introduced a slate of very innovative features with the iPhone and is using the patent system correctly.
Meanwhile, Google and Samsung are trying to use FRAND patents to defend their criminal copying of the iPhone’s inventions.
If there is justice in the patent system, before long, google will be a wholely owned subsidiary of Apple. (Samsung is too big for the judgement to be that large, but they should be out of the phone business completely.)
Alas, the patent system is broken- it doesn’t protect innovation, which is why google and samsung et. al. think they can get away with stealing and then pretending like what’s stolen isn’t actually property.
I don’t know what you’re smoking, but I want some.
Was whether or not Obama should veto the ban, not patents again. Which he should not because he should be too busy reining in the NSA to get involved in trivial corporate nonsense like this. This is just part of the seemingly endless legal war between Samsung and Apple, and should not be the President’s problem. Especially when he has infinitely more important things to worry about.
Oh yeah, and Jim Dalrymple, get a clue.
Honestly I struggle to understan how you can not see the obvious lack of logic in your arguments.
Consider that this case is about, never mind the players. Company A has used an international organization to ban the devices of Company B from sale in the United States using, arguably, a standards essential patent.
Now the devices are old and Company A has a crapload of money (and you don’t like Company A) so you somehow think this should be considered ‘ok’. Or wait, you don’t think it’s ‘ok’ but you don’t think anyone should stop it because it’s a bad precedent and because of the nature of the negotiations between company A and B.
Consider what this will do to ANY smaller company if it is not stopped. Samsung, Apple, or for that matter ANY company will be able to stop the import of devices into the US using a SEP. That’s a fucking nightmarish scenario for the industry as a whole, which is why every major software and hardware company in the US (except Google, never mind that hypocrisy) is urging the US government to do something to prevent this.
If Company A did all the things the ITC says it did wrong Company B should sue, get it’s argument in front of a ‘jury of it’s peers’ and get whatever money it is owed. Banning a company from a market based on some backroom analysis is absurd. To argue that to intervene to stop this is wrong is the height of idiocy. But you already know this, you just can’t get beyond your ‘waa Apple started this their a bully fuck them even if it means you fuck the world’ just shows you can’t see beyond your own bias.
Frankly I am going to be pretty shocked if the US Trade Commissioner does not veto this (or likely, ‘put the decision on hold, pending further review’ or some other gov speak).
ITC isn^aEURTMt international, its a US organisation. This is also not a standards essential patent. Maybe this is why you struggle.
If you fear international/global trade bans, you should be campaigning to prevent ACTA/related agreements.