“An import ban has been ordered and will take effect at the end of the 60-day Presidential review period,” Müller reports. “Even though there may be expectations in South Korea that Samsung should benefit from a Presidential veto only because Apple just won one last Saturday, “me too” doesn’t make sense here because standard-essential patents (SEPs) like the one over which the ITC wanted to grant Samsung an exclusion order come with FRAND (fair, reasonable and non-discriminatory) licensing obligations and can’t be worked around without prohibitive switching costs, while non-SEPs are traditional exclusionary rights and, most importantly, can be worked around. In fact, Samsung presented to the ITC products that it said (and Judge Pender agreed) don’t infringe. If legality is so readily available, a veto isn’t warranted.”
Müller reports, “The lack of information on Samsung’s workarounds also makes it difficult at this stage to assess the effect of today’s decision on the prospects for a settlement of the wider, global dispute between these two players. There’s no question that there will be a settlement at some point. What’s unclear is whether the parties have enough guidance from the courts at this stage to reach an agreement. And sometimes it takes more than guidance: infringement can be a viable business strategy as long as right holders can’t obtain meaningful remedies. For example, almost a year ago a jury found Samsung to infringe half a dozen intellectual property rights held by Apple, and the court didn’t overturn any of these liability findings, but Apple has not yet received even one cent of damages (a limited damages retrial is scheduled for November) and was denied a permanent injunction. Based on how today’s appellate hearing relating to that injunction request went, I believe Apple is clearly on the winning track…”
Much more in the full article – recommended – here.
[Thanks to MacDailyNews Reader “Brawndo Drinker” for the heads up.]