ITC calls for import ban against Samsung, rejects Google's flip-flop arguments

Posted:
in iPhone edited January 2014
The US International Trade Commission's Office of Unfair Import Investigations (OUII) has recommended an import ban against Samsung's Android devices infringing upon four Apple patents, rejecting contradictory, flawed arguments by Google.

ITC brief


A report by Florian Mueller of FOSS Patents details the recommendation, which will be next considered by the ITC's six member Commission before a ban is put into place.

Particularly notable in the ITC's staff recommendation brief is the fact that arguments by Google in support of Samsung were summarily rejected as legally incorrect, disingenuous and contradictory.

ITC destroys Google's "public interest" arguments

Google's arguments against an ITC import ban on infringing Samsung devices maintained that such action would not advance the public interest; that Apple's patents were not really 'inventive' and easy to work around; that market competition would be harmed; and that such a ban would be an "extraordinary remedy" for patent infringement.

The ITC found Google's arguments to be legally incorrect, biased and contradictory. While Google portrayed itself to the ITC as a neutral party offering a "friend of the court" perspective, the group referred to Google in the brief as a "non party," fully recognizing why Google has involved itself in the case surrounding its own Android licensee.

The staff also targeted the legal fallacy of Google's "public interest" argument, writing, "With respect to non-party Google's arguments, OUII first notes that the question is not whether an exclusion order would 'advance' the public interest (see Google Comments at 1); rather, the statute states that the Commission 'shall' issue an exclusion order 'unless' the public interest dictates otherwise. 19 U.S.C. ? 1337(d)(1)."

As Mueller explains, the ITC is charged with protecting intellectual property and the rule of law, and while its power to ban infringing imports can be challenged by a significant "public interest" argument against doing so, that's a "reasonable hurdle to overcome."

Google's argument, the ITC states, has the law backward. By arguing that a ban must "advance the public interest," (and claiming that it wouldn't in this case), Google hoped to shift the burden of proof around.

"The ITC staff apparently doesn't like this distortion of the statute," Mueller noted.

Google's workaround and competitive arguments also found invalid

The second element of Google's arguments was even more strongly dismantled by the ITC staff, which wrote:

"Moreover, Google's contention that the patents are not 'inventive' and are easily designed around, even if true, actually shows the lack of impact on the public interest ? once Samsung designs around the patents, then its products will no longer be subject to exclusion."

Mueller cited a recent ruling by Chief Judge Rader, who wrote, "If indeed [the defendant in that case] had a non-infringing alternative which it could easily deliver to the market, then the balance of hardships would suggest that [it] should halt infringement and pursue a lawful course of market conduct."

With regards to limitations on competition, the ITC stated:

"Finally, Google's arguments concerning the lack of competition in the marketplace (see Google Comments at 3-4) are contradicted by both the publicly-available information cited above and the Commission's findings in other recent investigations involving similar products."

The brief concludes, "Thus, OUII does not believe that the public interest precludes issuance of its proposed remedies in this investigation."

Google displays egregious hypocrisy in arguing both sides of patent cases

Google's arguments against the enforcement of Apple's patents are not just flawed, but grossly hypocritical. When arguing on behalf of its subsidiary Motorola, Google's attorneys argue the exact opposite position.

As early noted, again by Mueller, Google not only argues both sides of the law with regard to Android, but even filed contradictory policy statements on intellectual property and the role of the proper role of the ITC on the same day.

"This may have been the first time in the history of United States International Trade Commission that the same party, on the same day, submitted an anti-IP/weak-ITC policy statement and a pro-IP/strong-ITC one," Mueller observed."This may have been the first time in the history of United States International Trade Commission that the same party, on the same day, submitted an anti-IP/weak-ITC policy statement and a pro-IP/strong-ITC one."

He juxtaposed Google's pro-IP arguments against Apple and and its anti-patent arguments in favor of Android, which included a pleading in favor of a Samsung ban on Apple products related to a FRAND licensing dispute:

"? a rule that would allow it to continue to import infringing products with impunity would undermine [...] the statutory mandate of the ITC," Google's attorneys wrote.

"It would, in short, allow infringers to cause the exact harm on domestic industry and United States consumers that Congress intended the Commission to prevent."

So much for the "public interest" in ignoring intellectual property, at least when it concerns Apple's. An in this case, Google was arguing for import bans on FRAND patents while arguing against the enforcement of Apple's, which are not under FRAND terms.

Globally, courts have generally rejected sales bans on FRAND patents, apart from the ITC's recent, controversial decision to ban certain older iOS devices based on Samsung's FRAND patent claims asserted on Infineon chips, which have already paid to license Samsung's FRAND patents in a case where Samsung argues for more money from Apple regardless).

Google digs deeper into the hypocrite bucket

Directly contradicting its own "public interest" argument against Apple's patents, Google's attorneys wrote, in support of Samsung's efforts to ban Apple products over FRAND claims:

"The 'public interest' exception to the statute has historically been narrowly and rarely applied, reflecting the proper balance between the public?s interest in competition from imported goods and the enforcement of patent rights, which has furthered technological advancement in the nation."While Google claims Apple's efforts to obtain an import ban over Samsung's infringements are "extraordinary," it uses the opposite word to describe Samsung's efforts to ban Apple's products.

And while Google claims Apple's efforts to obtain an import ban over Samsung's infringements are "extraordinary," it uses the opposite word to describe Samsung's efforts to ban Apple's products:

"Where [...] the Commission has found a violation of Section 337, the ordinary presumption in favor of issuance of an exclusion order should apply," Google wrote in favor of Samsung.

"Congress intended injunctive relief to be the normal remedy for a Section 337 violation and that a showing of irreparable harm is not required to receive such injunctive relief," it later added. [emphasis added]

Waiting for finality

The ITC staff's dismantling of Google's input in the Samsung case doesn't necessarily mean that the Commission will enact an import ban of infringing Samsung devices, and Mueller details a series of issues that would affect the potential scope of the ITC's final decision.

"I'm sure there will be at least some infringement finding(s)," Mueller wrote, adding that "the question is just how many of the four patents the judge found infringed will ultimately be deemed valid and infringed."

If a ban is enacted, Samsung will be required to post a substantial bond equal to 58 percent (recommended by the ITC staff) or up to 88 percent (recommended earlier by Judge Pender) of its relevant US smartphone sales during the presidential review period.
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Comments

  • Reply 1 of 58
    john.bjohn.b Posts: 2,720member
    Has Google tried to buy out the ITC yet? ;) [COLOR=white]#Waze[/COLOR]
  • Reply 2 of 58
    tallest skiltallest skil Posts: 43,399member
    ITC, you just keep bemusing me. Both ways, good and bad.
  • Reply 3 of 58
    gatorguygatorguy Posts: 20,618member
    I'm surprised AI would bother with the staff opinion as tho it's somehow binding. They are simply another third party offering their viewpoint. Further, if the ITC judge accepted the staff recommendation in it's entirety if would be a much more narrow victory for Apple than what the ITC [B]preliminary[/B] ruling already offers. In other words the staff disagrees with some of the ITC's pro-Apple rulings to this point. It would be in Apple's better interests for the staff opinions [B]not [/B]to be adopted.

    It was pretty much just a typical anti-Google article from Mueller as far as his opinion. The facts he chose to include are correct of course as they normally are, and I'd agree with him that an import ban is more likely than not.
  • Reply 4 of 58
    lkrupplkrupp Posts: 7,098member
    So which is going to be more important? The U.S. ITC ruling to ban certain older iOS devices for infringing on Samsung patents or the U.S. ITC ruling now banning Samsung devices for infringing on four Apple patents?
  • Reply 5 of 58
    atashiatashi Posts: 59member

    Quote:

    Originally Posted by John.B View Post



    Has Google tried to buy out the ITC yet? image #Waze


     


    No, but they're working on their own version. It'll be free for anyone to use, but there'll be ads, obviously.

  • Reply 6 of 58
    SpamSandwichSpamSandwich Posts: 31,131member
    Just let me know when this leads to an enforceable ban and monetary damages on patent-infringing Samsung.
  • Reply 7 of 58
    gatorguygatorguy Posts: 20,618member
    Just let me know when this leads to an enforceable ban and monetary damages on patent-infringing Samsung.

    It can't lead to monetary damages. That would be a cure in civil court not the ITC.
  • Reply 8 of 58
    archarch Posts: 66member


    I won't believe all this crap until any money is actually exchanged or device actually banned.

  • Reply 9 of 58
    jungmarkjungmark Posts: 6,694member
    ITC to Google:
    ....................../´¯/)
    ....................,/¯../
    .................../..../
    ............./´¯/'...'/´¯¯`·¸
    ........../'/.../..../......./¨¯\
    ........('(...´...´.... ¯~/'...')
    .........\.................'...../
    ..........''...\.......... _.·´
    ............\..............(
    ..............\.............\...
  • Reply 10 of 58
    anonymouseanonymouse Posts: 6,579member

    Quote:

    Originally Posted by Gatorguy View Post



    I'm surprised AI would bother with the staff opinion as tho it's somehow binding. They are simply another third party offering their viewpoint. Further, if the ITC judge accepted the staff recommendation in it's entirety if would be a much more narrow victory for Apple than what the ITC preliminary ruling already offers. In other words the staff disagrees with some of the ITC's pro-Apple rulings to this point. It would be in Apple's better interests for the staff opinions not to be adopted.



    It was pretty much just a typical anti-Google article from Mueller as far as his opinion. The facts he chose to include are correct of course as they normally are, and I'd agree with him that an import ban is more likely than not.


     


    There you go again, bashing Mueller when argues against your paymasters, citing him when he argues in their favor. Make up your mind, is he a trusted neutral authority, or a hopelessly biased partisan?


     


    As for the article pointing out the rank hypocrisy of Google, well, that's why they wrote it, and Google deserves to have its hypocrisy held up for the world to see. If that makes you uncomfortable, find another job.

  • Reply 11 of 58
    droidftwdroidftw Posts: 1,009member


    Lawyers talking out of both sides of their mouths?!  Now I've heard it all!

  • Reply 12 of 58
    anantksundaramanantksundaram Posts: 19,167member

    Quote:

    Originally Posted by AppleInsider View Post

    ..... arguments by Google in support of Samsung were summarily rejected as legally incorrect, disingenuous and contradictory.


    Ouch. Just one of those three would have been enough.... image

  • Reply 13 of 58
    anantksundaramanantksundaram Posts: 19,167member

    Quote:

    Originally Posted by AppleInsider View Post



    If a ban is enacted, Samsung will be required to post a substantial bond equal to 58 percent (recommended by the ITC staff) or up to 88 percent (recommended earlier by Judge Pender) of its relevant US smartphone sales during the presidential review period.


    Even if it is 1%, finally, we'll finally get the truth on their actual sales.....

  • Reply 14 of 58
    jragostajragosta Posts: 10,473member
    gatorguy wrote: »
    I'm surprised AI would bother with the staff opinion as tho it's somehow binding. They are simply another third party offering their viewpoint. Further, if the ITC judge accepted the staff recommendation in it's entirety if would be a much more narrow victory for Apple than what the ITC preliminary ruling already offers. In other words the staff disagrees with some of the ITC's pro-Apple rulings to this point. It would be in Apple's better interests for the staff opinions not to be adopted.

    It was pretty much just a typical anti-Google article from Mueller as far as his opinion. The facts he chose to include are correct of course as they normally are, and I'd agree with him that an import ban is more likely than not.

    The point of the article was to highlight Google's hypocrisy - arguing that a ban would be extraordinary when it's applied against Samsung, but the ordinary course of affairs when applied against Apple. The article highlights more of Google's hypocrisy.
  • Reply 15 of 58
    SpamSandwichSpamSandwich Posts: 31,131member

    Quote:

    Originally Posted by anantksundaram View Post


    Even if it is 1%, finally, we'll finally get the truth on their actual sales.....



     


    Not sure if that's even possible. They could be faking all kinds of data.

  • Reply 16 of 58
    coffeetimecoffeetime Posts: 116member


    Mueller's phone of choice runs Android, so don't try and paint him as an Apple fanboy.  For those who read his blog, his posts go into EXTREME detail (and length) about virtually every patent-related topic he choses to comment on, and to my mind, he seems very fair-minded.  You don't have to search his site too far to find opinions that castigate Apple.

  • Reply 17 of 58
    rayzrayz Posts: 814member

    Quote:

    Originally Posted by Gatorguy View Post



    I'm surprised AI would bother with the staff opinion as tho it's somehow binding. They are simply another third party offering their viewpoint. Further, if the ITC judge accepted the staff recommendation in it's entirety if would be a much more narrow victory for Apple than what the ITC preliminary ruling already offers. In other words the staff disagrees with some of the ITC's pro-Apple rulings to this point. It would be in Apple's better interests for the staff opinions not to be adopted.



    It was pretty much just a typical anti-Google article from Mueller as far as his opinion. The facts he chose to include are correct of course as they normally are, and I'd agree with him that an import ban is more likely than not.


     


    Isn't it round about now when you try to convince folk that Google isn't suing anyone, by insisting that Motorola is somehow a completely separate company and not attached to Google at all?

  • Reply 18 of 58
    gtrgtr Posts: 3,231member

    Quote:

    Originally Posted by anantksundaram View Post


    Ouch. Just one of those three would have been enough.... image



     


    Those seem like an awfully large amount of letters to spell "bullshit".

  • Reply 19 of 58
    gatorguygatorguy Posts: 20,618member
    @coffeetime
    But not a single Mueller article with a favorable Google comment in his entire FossPatents history. Ever. For anything. Not that being paid by both MS and Oracle would have anything to do with that.

    I'll agree the facts he chooses are usually correct tho. That's why I make him a daily read.
  • Reply 20 of 58
    sensisensi Posts: 346member
    The "Transform SPH-M920" mentioned in the doc is a phone from 2010 running android 2.1... What a waste of time and legal fees...
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