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USTR Upholds Import Ban on Samsung Smartphones and Tablets

Wednesday, October 09, 2013
Sandler, Travis & Rosenberg Trade Report

U.S. Trade Representative Mike Froman affirmed Oct. 8 an International Trade Commission order banning imports of certain older model Samsung smartphones and tablets found to be infringing patents owned by Apple Inc. Froman distinguished this case from one in which he overturned a similar ITC order against certain Apple products found to be violating patents held by Samsung by pointing out that the patents involved here are not “standards essential” (i.e., necessary to comply with established industry standards for the product).

In investigation 337-TA-796, the ITC found that the importation, sale for importation and sale within the U.S. after importation of certain electronic digital media devices and components thereof (specifically, mobile phones, media players and tablet computers) by Samsung are violating Section 337 of the 1930 Tariff Act by reason of infringement of two patents owned by Apple concerning multitouch recognition and headphone jack detection. The ITC then issued a limited exclusion order prohibiting the unlicensed importation of infringing devices manufactured for or on behalf of Samsung as well as a cease and desist order prohibiting Samsung from further importing, selling and distributing such products.

In allowing the LEO to become final, Froman downplayed its possible effect on consumers or Samsung. The order applies only to certain older generation products, he noted, and specifically excludes a list of devices that the ITC determined did not infringe the two patents at issue as well as any other Samsung electronic media devices incorporating approved technologies designed to avoid infringing those patents.

Froman did acknowledge the concerns that Samsung and other members of the patent community have raised regarding the clarity of the ITC’s exclusion orders and U.S. Customs and Border Protection’s procedures for the interpretation and enforcement of those orders. He stated that the Office of the Intellectual Property Enforcement Coordinator is conducting an interagency review aimed at strengthening the procedures and practices used during the enforcement of ITC exclusion orders and is expected to make recommendations on how to address these issues on a systemic basis.

Finally, Froman sought to dispel any perception that USTR’s recent decisions in the Samsung and Apple cases are discriminatory against foreign companies, stating that “the nationality of the companies involved played no role in the review process” and that “both Samsung and Apple are important contributors to the U.S. economy and help advance innovation and technological progress.”

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