USTR Inaction on Samsung Veto Not Surprising, but Could Raise Question of Protectionism
The U.S. Trade Representative's Oct. 8 decision to let the International Trade Commission's import ban stand was not surprising, despite a recent USTR veto of an Apple product import ban (see 13080515), said aid Benjamin Levi, a McKool Smith attorney who has argued patent cases before federal courts and the ITC. The patents at issue in the Samsung import ban were not standard-essential patents (SEPs) -- the main factor in the USTR's decision to veto the Apple import ban in August, he said. There remains "some uncertainty" over the full extent to which USTR's veto of the Apple import ban will become a precedent in other cases involving SEPs, Levi said. "But I would doubt that the USTR would routinely veto exclusion orders based" on SEPs, he said.
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The ITC issued the limited exclusion order in August, after finding Samsung violated two Apple patents -- U.S. Patent Nos. 7,479,949 and 7,912,501 -- that cover touch-screen heuristics and the detection of an object in a headphone jack. The ban affected older Samsung devices, including the Transform SPH-M920 and Continuum SCH-1400. The optics of the two cases do call into question whether there were political reasons for USTR to veto the Apple ban but uphold the Samsung ban, said Peter Toren, an intellectual property attorney with Weisbrod Matteis who has argued patent cases before federal courts. "From at least appearance's sake, it looks like the government is protecting an American company," he told us. "Whether that's true or not, I don't know. But certainly it's an important reading given how this case is going to be spun." A USTR spokeswoman said the nationalities of Samsung and Apple did not play a role in the decision.