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Apple violates some of Samsung's patents: ITC

Apple Inc. faces a ban on imports of some older devices including the iPhone 4 after a U.S. trade agency said they infringe a patent owned by Samsung Electronics Co., its biggest competitor in the global smartphone market.

It’s the first patent ruling against Apple in the U.S. that affects product sales. The order covers the iPhone 4 and iPad 2 3G sold for use on networks operated by AT&T Inc., T-Mobile US Inc. and two regional carriers, General Communication Inc. in Alaska and CT Cube LP in Texas.

The U.S. International Trade Commission’s decision, in a notice posted on its website today, is subject to review by President Barack Obama, who can overturn the import ban on public-policy grounds. That rarely happens.

“Historically, the president does not interfere in these sorts of things,” said Lyle Vander Schaaf, a patent lawyer with Brinks Hofer in Washington. “It shows the commission is a very bold agency that they are willing to take these steps despite the popularity of the Apple products.”

The decision could mean fewer choices for AT&T and T-Mobile customers who want to get an iPhone without paying the higher cost of the iPhone 5. Samsung told the commission that Cupertino, California-based Apple could drop the price of the iPhone 5 if it was worried about losing potential customers.

The three-year-old iPhone 4 is still a hot-selling product, said Marcelo Claure, chief executive officer of Brightstar Corp., a cell-phone distributor with operations in 50 countries.

“Anytime you can’t sell your entire portfolio, it’s a big deal,” he said. Unlike Samsung, which sells hundreds of models, Apple sells only the iPhone 4, 4S and 5.

Apple, which can continue importing the devices during Obama’s review, pledged to appeal the ITC decision. The underlying findings will be reviewed by a U.S. appeals court specializing in patent cases.

“We are disappointed that the commission has overturned an earlier ruling and we plan to appeal,” said Kristin Huguet, an Apple spokeswoman. “Today’s decision has no impact on the availability of Apple products in the United States.”

With dozens of lawsuits spread across four continents in their global battle for a greater share of the $293.9 billion market for smartphones, each side can now claim a victory in the U.S. litigation.

Apple won a $1 billion verdict last year that has since been cut to about $600 million. It was based on a jury finding that Samsung devices copied the look and unique features of the iPhone and iPad. The commission is scheduled to release a final decision in Apple’s trade case against Samsung in August.

Samsung Innovations

“We believe the ITC’s final determination has confirmed Apple’s history of free-riding on Samsung’s technological innovations,” Adam Yates, a Samsung spokesman, said. “Our decades of research and development in mobile technologies will continue, and we will continue to offer innovative products to consumers in the United States.”

In the ITC case, Apple was found to infringe a patent for a widely-used way that phones transmit data. Apple argued that Samsung was obligated to license the patent on fair terms because it was part of an industry standard and instead the company demanded an unreasonable royalty.

Obama’s administration and the U.S. Patent and Trademark Office in January urged the ITC to closely look at patents that relate to industry standards before issuing any import bans. Obama earlier today announced further actions designed to crackdown on abusive patent litigation from what critics have called “trolls.”

Commission Dissent

“Samsung is using a strategy which has been rejected by courts and regulators around the world,” Huguet said. “They’ve admitted that it’s against the interests of consumers in Europe and elsewhere, yet here in the United States Samsung continues to try to block the sale of Apple products by using patents they agreed to license to anyone for a reasonable fee.”

The commission said Samsung’s obligations didn’t preclude the issuance of an import ban. Commissioner Dean Pinkert dissented on public-interest grounds, according to the notice.

Samsung, based in Suwon, South Korea, contended Apple infringes four patents, including two covering data transmission. U.S. trade Judge James Gildea sided with Apple in September, saying Apple didn’t infringe any of the patents and that one, for a way to detect movement on a touch screen, was invalid.

The fourth patent in the case is for a way to detect phone numbers in e-mails so they can be dialed or stored in the phone’s contact list.

Licensing Fees

The commission agreed with the judge on the other three patents.

Apple contends Samsung never made a fair offer and demanded that Apple pay 2.4 percent of the average sales price of every iPhone and cellular-enabled iPad, according to filings with the agency.

The iPhone generated $78.7 billion in sales for the fiscal year ended Sept. 29, or about 50 percent of Apple’s revenue, according to data compiled by Bloomberg. Its iPad brought in $30.9 billion, and the iPod generated $5.6 billion.

In its filings, Samsung said it’s been offering Apple a license since November 2010 and “Apple has never been willing to take a license on any terms.”

Apple has for two years claimed Samsung “slavishly copied” the iPhone, while Samsung contends that Apple entered the mobile-phone market without paying royalties to the companies that built the industry.

Samsung’s case against Apple is In the Matter of Electronic Devices, Including Wireless Communication Devices, 337-794, and Apple’s case against Samsung is In the Matter of Electronic Digital Media Devices, 337-796, both U.S. International Trade Commission (Washington). (Bloomberg)