updated 05:50 pm EDT, Tue June 4, 2013
Surprise ruling affects AT&T 3G versions of iPhone 4, iPad 2, older models
[Updated with Apple and Samsung statements on the ruling] Despite finding in September that Apple had not violated Samsung's patent rights and that Samsung didn't have a "domestic industry" that utilized the patents in dispute, the US International Trade Commission (ITC) has nonetheless issued a limited ban on older iOS products that utilize a disputed SEP Samsung patent in a surprise ruling on Tuesday. The ban reflects an apparent change in the "domestic industry" portion of the finding, which would normally shield Apple from import bans. The ruling primarily affects the iPhone 4 as sold by AT&T, though other older models are also included in the injunction.
The products affected by the order include the AT&T versions of the iPhone 4, the original iPad with 3G and iPad 2 with 3G, the iPhone 3GS and the long-discontinued iPhone 3G. All but the iPhone 4 are no longer offered for sale by Apple, and the current version of the iPhone 4 may be using an updated Qualcomm chipset that isn't covered under the patent in question. Apple has already issued a statement saying that the order will not change -- for the time being -- the availability of any of its current products.
The order is something of a mystery, as in the original ruling Apple won a clear victory in the complaint, with Judge Gildea ruling that Apple was not infringing on any of the four patents included, and that Samsung could not meet the requirement of proof that it had a "domestic industry" that utilized the patents, a requirement that is exclusive to the ITC. The ban and cease-and-desist order are seen as unusually vindictive, given that Apple was denied similar bans when it proved -- in both a federal jury case and several ITC cases -- that Samsung and other companies had infringed on non-SEP patents held by the iPhone maker.
The ruling also flies in the face of recent US and even ITC rulings that SEP-based injunctions should not be allowed. The patent at the heart of the ruling are "standards-essential patents" (SEPs) and thus shouldn't be subject to any sales injunctions, according to numerous US court rulings and a set of bipartisan Congressional hearings. Antitrust regulators have also said that only in the most extraordinary of circumstances should sales bans be granted to holders of SEP and FRAND-eligible patents.
Apple will certainly appeal the ruling to the Federal Circuit, and the Obama administration is considered unlikely to allow the ban to proceed, as it has a 90-day Presidential Review period in which it can veto the order. Coincidentally, earlier on Tuesday the Obama administration submitted a legislative proposal of patent reform measures that include a raising of the bar for ITC injunction orders.
This is the first time outside its home country of South Korea that Samsung has won a sales injunction on any Apple products, or indeed any ruling that Apple infringed on a non-SEP Samsung patent. Samsung did win one case proving SEP infringement of one of its patents in the Netherlands, but was limited only to monetary compensation.
[Update: Apple's and Samsung's responses] "We are disappointed that the Commission has overturned an earlier ruling and we plan to appeal. Today's decision has no impact on the availability of Apple products in the United States. Samsung is using a strategy which has been rejected by courts and regulators around the world. They've admitted that it's against the interests of consumers in Europe and elsewhere, yet here in the United States Samsung continues to try to block the sale of Apple products by using patents they agreed to license to anyone for a reasonable fee," Apple spokesperson Kristin Huguet told AllThingsD.
Samsung also issued a statement on the ruling, saying that the company believed that "the ITC's Final Determination has confirmed Apple's history of free-riding on Samsung's technological innovations. Our decades of research and development in mobile technologies will continue, and we will continue to offer innovative products to consumers in the United States."