Apple has argued that Samsung isn't licensing their standards essential patents on FRAND terms. If that is the case, it seems reasonable to me to prevent them from threatening product bans to extract exorbitant licensing fees. In my limited understanding, that right to discriminatory license fees is waived when patents are contributed to a standard, in exchange for acceptance for use in the standard. Otherwise it would be a de facto monopoly for the patent holders, with all of the negative consequences for competition.
Have there been any other cases where a product ban has been enforced because of an FRAND patent dispute? Unless there have, claims of protectionism are unwarranted. But even if there have, that doesn't prove protectionism is in play, but rather possibly that a past wrong is being corrected.
Samsung demanded a fee equal to 2.5% of the cost of the phone. From everyone, including Apple. Apple decided this was "unreasonable" for them, demanded special treatment and refused to pay.
The ITC concluded Apple was not following the rules and not playing fairly and thus initiated the ban.
And now the administration overturns the court's decision on a whim. Keep in mind this is the same legal playground which fined Samsung 1 billion dollars for having pinch to zoom on a phone.
It's very hard to see this is anything but unfair market manipulation.
2.4%. And please cite your source that says it applied to every other licensee. My reading of the commission document indicates that all other license agreements Samsung made for this patent involved multiple SEPs from each party in cross-licensing agreements. Samsung was also trying to use its SEPs as leverage to get Apple to cross-license its non-SEPs to them at a discount to Apple's proposal. Were both parties being reasonable in their demands? Honestly, I couldn't tell from the redacted document.
Samsung blatantly copied the iPhone in many many ways. Using the pinch to zoom patent is likely similar to prosecuting the mafia for tax evasion - it wasn't their most egregious offense, but it was the only one the feds could make stick.
The ITC found the Apple could neither prove that the infringed was covered by FRAND, nor did Apple agree to what the ITC thought was a reasonable agreement. Of course the ITC considers FRAND which is exactly why Motorola's injunction against the Xbox was denied.
Citation please. From reading the Commission Opinion document, it appears to me that what was in dispute was whether Apple proved that Samsung had not made at least one FRAND offer, and even if not, whether Apple proved the ITC didn't have authority to apply an import ban because of an SEP. Commissioner Pinkert offered a dissenting opinion (from a footnote in the report):
"...Samsung does not dispute that it has made FRAND licensing commitments in regard to the '348 patent, and, as explained in his dissenting views, he has considered the evidence before the Commission in the current phase of the investigation and has found the weight of the evidence to indicate that Samsung has not made FRAND licensing terms covering the '348 patent available to Apple."
So apparently it is not clear whether Samsung made a FRAND offer to Apple. Most details of negotiations are redacted, so I cannot make a judgement. It seems irrational to me that the ITC's comments regarding the negotiations seem to require Apple to irrefutably prove Samsung's offers weren't FRAND, but don't require Samsung to prove they were FRAND. Unfortunately in this case I believe all of Samsung's other licenses involve cross-licenses of multiple SEPs from each party, so there is no easily referenced objectively reasonable license fee for the single patent.
In case of a stalemate in negotiations, I am not sure what the proper remedy should be, but an import ban on the would-be licensee seems to put far too much power into the hands of SEP licensors.
Have there been any other cases where a product ban has been enforced because of an FRAND patent dispute? Unless there have, claims of protectionism are unwarranted. But even if there have, that doesn't prove protectionism is in play, but rather possibly that a past wrong is being corrected.