How the ITC ignoring Samsung's FRAND-abuse forced a veto in Apple's favor
How did the ITC get the Samsung vs. Apple decision so wrong it forced the Obama administration to side with the lone, Bush-appointed dissenter on the commission and issue their first over-ruling in over a quarter century? Did they really not understand the difference between standards-essential patents, those pledged under FRAND (fair, reasonable, and non-descriminatory) and proprietary patents, those not required to be licensed at all? Based on their decision, when read against the dissenting opinion, that's about the only thing that makes any sense. Philip Elmer-DeWitt writes for Fortune:
Reading between the lines, it sounds like Samsung had refused to license its standard-essential patents (SEPs) unless Apple offered its non-essential iPhone patents -- the company's crown jewels -- in return.
Once again, that's like being the guy who runs the public pool in town refusing to let one family swim there unless he gets to come to their private house and skinny dip in their hot tub. It's unfair, unseemly, may well constitute abuse of the system, and definitely constitutes violation of Wheaton's law.
In this case, Samsung jumpstarted their entry into the smartphone and tablet market by infringing on Apple and instead of paying the cost of that infringement, they decided to threaten Apple's ability to get their devices onto wireless networks, and otherwise interoperate with existing standards - standards that came into being based on the good-faith pledges not to abuse them in just this way. It's also why, instead of granting bans, other jurisdictions had begun investigations into Samsung and others over the practice.
In that light, it's not baffling that the U.S. Trade Representative had to veto the ban, it's baffling the ban was issued at all, ever, in the first place.
Check out the rest of Elmer-DeWitt's piece for more on Samsung's apparent FRAND abuse, as elaborated upon by the dissenting ITC commissioner.