Later today, sometime before midnight, we'll find out whether the Obama Administration is going to overturn the
As background this is part of the ongoing process where Apple and Samsung sue each other in every courtroom that will have them over various patents. All most entertaining and it considerably enriches a large number of lawyers but nothing else of very much note has really happened. The reason for that being that the technology in this market moves faster than the courts can or do. So by the time something is really settled, that it really does violate a patent held by one or the other, then the product probably isn't being made any more anyway.
However, despite all of this these two cases have made it all the way through the ITC process, there has been a determination that some Apple products violated some Samsung patents and a ban was issued. Similarly, there was a finding that some Samsung products violated some Apple patents and a ban was issued. Obama overturned the Apple ban and the question is today whether he'll overturn the Samsung one. The answer is that no, he almost certainly should not overturn this second import ban.
The reason is the type of patents that were violated. The Samsung patents that Apple violated are standards essential patents, SEPs. As part of their ending up in the patent pool for that standard Samsung has agreed to licence them to all and sundry on fair, reasonable and non-discriminatory terms (FRAND). So Samsung has already agreed, as part of the process of their getting into the patent pool, that they'd be just delighted if people would pay them a bit of cash for the use of those patents. Apple's patents violated by Samsung on the other hand were not SEPs. Apple has most certainly not indicated that they'd be happy to license such patents.
Given this difference there's been an increasing agreement among courts around the world that issuing product or import bans against violations of SEPs is not justified. Not only has there been a couple of cases in Germany where this was made very clear indeed, we've got the EU threatening to fine Samsung for even asking for an import ban on the basis of SEPs. For, if you've agreed that cash is just fine for the use of your patents then it's not justifiable to reach for the nuclear option of a product ban. You'll just have to wait until the court decides what FRAND is and then forces the violater to pay you that.
And that's why the Samsung import ban probably should stand: because we've got the international legal system moving towards a common standard whereby violation of SEPs cannot lead to a ban (so no ban on Apple) but violation of non-SEPs can (and thus a ban on Samsung).
