Links 4 Aug: Of Course Apple's Imports Were Not Going To Be Banned Aug 4th 2013, 17:07
To the surprise of almost no one the Obama Administration has overturned the looming ban on the imports of certain of ‘s older products. The Obama administration on Saturday vetoed a U.S. trade body’s ban on the import and sale of some Apple Inc. iPhones and iPads, a rare move that upends a legal victory for smartphone rival Co. The particular reason used was that the patent in question was a standards essential one: In addition, on January 8, 2013, the Department of Justice and United States Patent and Trademark Office issued an important Policy Statement entitled "Policy Statement on Remedies for Standard-Essential Patents Subject to Voluntary FRAND Commitments" ("Policy Statement").2 The Policy Statement makes clear that standards, and particularly voluntary consensus standards set by standards developing organizations ("SDO"), have incorporated important technical advances that are fundamental to the interoperability of many of the products on which consumers have come to rely, including the types of devices that are the subject of the Commission's determination. The Policy Statement expresses substantial concerns, which I strongly share, about the potential harms that can result from owners of standardsessential patents ("SEPs") who have made a voluntary commitment to offer to license SEPs on terms that are fair, reasonable, and nondiscriminatory ("FRAND"), gaining undue leverage and engaging in "patent holdup", i.e., asserting the patent to exclude an implementer of the standard from a market to obtain a higher price for use of the patent than would have been possible before the standard was set, when alternative technologies could have been chosen. At the same time, technology implementers also can cause potential harm by, for example, engaging in "reverse holdup" ("holdout"), e. g., by constructive refusal to negotiate a FRAND license with the SEP owner or refusal to pay what has been determined to be a FRAND royalty. This seems reasonable enough: the EU also has a similar policy that violation of SEPs, that should be available on FRAND terms, cannot be used to ask for product or sales bans.
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