updated 11:17 pm EDT, Thu August 1, 2013
Ban on iPhone 4 to go into effect Monday without intervention
Only days before a mysterious ITC ban on the iPhone 4 (and GSM iPad 2, no longer offered for sale) is to come into effect, the same body has decided -- on the day they were to pronounce judgement on another battle, an Apple complaint about Samsung patent infringement -- to delay the decision by a week. No reason for the delay was given. The matter revolves around four Apple patents -- three technical, one design -- and additional patents Samsung was found to be violating. Ironically, if the ITC continue with the preliminary judgement and staff recommendation, a sales ban on Samsung smartphones and tablets may be issued.
The Apple complaint against Samsung, unlike the Samsung case that won the ban, does not involve standards-essential patents (SEPs) -- a factor that has drawn great criticism to the ITC over its decision to bar Apple products over an SEP when it has declined to ban products from other companies found to be violating Apple's non-SEPs. In this latest Apple complaint against Samsung, the preliminary ruling by Judge Thomas Pender found Samsung guilty of infringing four Apple patents, and the full panel also remanded some additional issues to Pender, who found further violations by Android's text-selection feature.
The final ruling on the matter is not assured to be in line with the preliminary ruling, despite it being re-confirmed by the ITC's own Office of Outside Investigations. In the Samsung complaint against Apple, the full panel -- with one dissent -- ignored not only the preliminary findings but its own prior rulings on the legality of sales injunctions on SEP complaints in voting for a ban on Apple's older GSM devices. The panel may again ignore its own precedent, or go along with the recommendations of the OOI and Judge Pender's ruling, which found that a sales ban on the infringing Samsung products would not harm the public interest.
In a bit of further irony, the ITC rejected objections by Google and others that a Samsung product ban would cause consumer harm, noting that there are many manufacturers of Android products. This same reasoning was rejected by both of the panel when it ruled that the iPhone 4 could be banned for infringing on an SEP, even though removing iPhones from the market does, in fact, leave consumers with less choice.
The upcoming ban on the iPhone 4 has been decried by numerous parties, including the two major cellular carriers, US senators and prominent anti-trust attorneys. By design or coincidence, the new delay on the final ruling on the Apple vs Samsung complaint will put the ruling on the same day that the Court of Appeals will hold a hearing on to decide if Judge Lucy Koh -- in an entirely different complaint -- was wrong to deny Apple a sales injunction against Samsung in the high-profile trial last year where the Galaxy maker was found guilty of infringing another six Apple non-SEP patents.