updated 06:02 pm EDT, Fri April 5, 2013
New filings recently made public, affect only iPhone 4 and older
A pair of filings related to the contentious Apple versus Samsung worldwide patent battle made to the United States International Trade Commission (ITC) have become public. In one notable one, Apple noted that the widely reported 2.4 percent royalty Samsung demands for standards-essential patents was reduced in December of 2012. In the second, Samsung confirmed that any US import ban of Apple products would only apply to older products, with the most recent one being the iPhone 4.
Samsung's 2.4 percent royalty demand was first mentioned in 2011 in the Netherlands, with a Dutch court ultimately denying Samsung's injunction request because the demand was deemed far too high for a standards-essential patent license. The demand surfaced in the Apple versus Samsung patent trial in California, and has been widely disseminated since.
In December, as the post-trial motions flew, Samsung withdrew all of its EU injunction requests involving standards-essential patents. Apple's filing with the ITC says that a few weeks prior to Samsung's withdrawals, it lowered its royalty demand. Apple calls the offer insufficient, and said in the filing that "Samsung's new perspective as the target of another company's use of declared-essential patents to seek exclusion orders may have led Samsing to finally realize the problems with such tactics, and to accordingly reduce its demands to apple -- although not enough to come into compliance with FRAND." Apple argues that the total licensing cost for a wireless standard should not exceed 7 percent of the baseband processor, which sells for about $10.
In March of 2012 the ITC asked Apple and Samsung if a remedial order was issued on an allegedly UMTS-essential patent, what it expected the order to cover. In the proceedings, Samsung accused older products -- the AT&T models of the iPhone 4 and older, and the first and second generation iPads with 3G. Apple's response was filed without knowing what Samsung was going to propose. Apple argued that newer products didn't infringe on a technical basis, plus the baseband chip provider Qualcomm is a licensee of the Samsung patents.
Samsung filing with the ITC claimed that "at the time the complaint was filed, Apple's iPhones and iPads with UMTS connectivity were only available through AT&T. Since then, Apple has expanded its sales to other UMTS carriers. Because all iPhone 4 (UMTS version) and iPad 2 (UMTS version) devices infringe the asserted claims of the '348 patent, regardless of carrier customer, they would be subject to the Commission's remedial orders."
Patent analyst Florian Mueller says of the ITC hearings that "I still don't believe the ITC will actually ban any Apple products, given that courts and regulators have concluded that Samsung failed to comply with its FRAND licensing obligations, but if it happens nevertheless, its impact will be very limited."