updated 04:23 pm EDT, Thu May 23, 2013
Landmark ruling enjoins potential ITC sales embargo, cites lack of FRAND offer
Apple has wasted no time filing with the US International Trade Commission (ITC) regarding the landmark ruling from May 22 enjoining a standards essential patent holder from enforcing a potential ITC-ordered sales embargo. Apple's filing with the court summarizes Judge White's decision, and calls Samsung's conduct "even more egregious" than that of the cited case's patent holder.
Apple said in the filing with the ITC that "the Realtek case is strikingly similar to the instant case. Samsung brought an ITC complaint before making any offer specific to its declared-essential patents, let alone a FRAND-compliant offer. Just as in Realtek, when Apple responded to the ITC complaint by requesting that Samsung provide FRAND terms for the specific asserted patents, Samsung responded by making a non-FRAND demand based on the total price of the accused Apple products--rather than the cost of the relevant accused components."
"Indeed, Samsung's conduct here is even more egregious," Apple concludes, adding "in short, just as in Realtek, Samsung's pursuit of an ITC exclusion order directly conflicts with its FRAND commitments."
Patent analyst Florian Mueller believes that the quoted case's patent owner refusing to make any licensing offer was key to the previous decision, making the judge decide that "this attempt to seek to gain unfair leverage must be thwarted." Apple never sought a fair, reasonable, and non-discriminatory (FRAND) determination action like the alleged patent abuser did in the quoted case after Samsung's high patent license offer, which may be problematic to Apple's case.
The ITC ruling is expected on May 31. The landmark ruling is the second item this week that the ITC has to consider in a relatiely last-minute fashion, with the other item being the letter by US senators reminding the ITC of FRAND patent value to the US.