USTR Declines to Veto ITC’s Import Ban on Older-Model Samsung Mobile Devices

An import ban on certain older-model Samsung mobile devices was set to take effect Tuesday night after U.S. Trade Representative Michael Froman declined to veto a limited exclusion order issued by the U.S. International Trade Commission. The Samsung phones and tablets had been the subject of a Section 337 case Apple brought to the ITC. USTR gave Apple a reprieve from a similar import ban in August (CD Aug 15 p10). Samsung said in a statement it’s “disappointed” by the USTR’s decision, saying “it will serve only to reduce competition and limit choice for the American consumer."

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. Froman said in a statement that Samsung has found a way to get around the patent infringement, saying the limited exclusion order says that devices that incorporate the ITC-approved workaround aren’t covered by the ban. “If questions should arise about the scope of the exclusion order, I would urge close coordination between [Customs and Border Protection] and the USITC in addressing such enforcement issues,” Froman said. The ITC’s exclusion order and information from USTR do not make clear which Samsung devices are now banned from import and which devices are exempt because they meet the ITC-approved workaround.

The USTR’s decision to let the ITC’s import ban stand was expected, said 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, Levi told us. 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.

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 IP 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. ,