South Korea’s trade ministry, reports the Financial Times (FT), has criticised President Barack Obama’s veto of a US import ban on some Apple devices. It expressed “concern over the possible negative impacts that this kind of decision could have on Samsung Electronics’ patent rights”.
The overturning of the ban, imposed by the International Trade Commission (ITC) on account of Apple infringing Samsung’s Standard Essential Patents (SEPs), is a rare move by the White House.
According to trade experts quoted by the FT, the last time the president over-ruled ITC was back in 1987. There is now the inevitable danger, following intervention from Seoul, that a political row escalates between South Korea and US amid charges that the White House is unfairly lending Apple a helping hand.
There is a school of thought, however, that Samsung should never have sought (and won) its injunction against Apple in the first place.
Because the patents concerned are essential for technology to work, Richard Windsor, an ex-Nomura technology analyst and founder of the mobile-focused blog Radio Free Mobile, points out that the holder of SEPs must agree to license his technology in a free, reasonable and non-discriminatory manner (FRAND).
“A SEP holder is not supposed to seek injunctive relief as this is deemed to be a breach of the FRAND principle,” says Windsor. “This is why the White House has vetoed this injunction and why I believe that has been right to do so.”
A separate patent case involving Samsung and Apple is scheduled to be ruled on by ITC on 9 August. The issue is whether or not the ITC bans some Samsung devices from being imported into the US. Apple alleges that patents infringed are not standard, covering elements of smartphone design.
An administrative law judge has already made a ruling against Samsung, says the FT, while ITC’s commissioners usually uphold such preliminary judgments.
The South Korean ministry, adding pressure on ITC, says “we expect the decision to be fair and reasonable.”
“The ITC will likely take a more careful view in the Samsung case in light of the Obama veto,” said a patent lawyer, quoted in the Wall Street Journal, who declined to be identified.