In early June, Samsung rejoiced as the ITC handed down an order precluding Apple from importing AT&T models of the iPhone 3G, 3GS and 4. Also included in the order were AT&T models of the original iPad and the iPad 2.
Because the ITC order is final, the only way to get around it is if a presidential veto is issued.
At the time, Apple spokeswoman Kristin Huguet said:
We are disappointed that the commission has overturned an earlier ruling and we plan to appeal. Today's decision has no impact on the availability of Apple products in the United States.
Last week, Apple filed an appeal to the United States Trade Representative (USTR) who has the power to veto ITC exclusion orders.
Apple's motion notes that because the patented technologies asserted by Samsung are essential to technological standards, upholding the ITC decision "threatens to render meaningless a FRAND commitment made to a standard-setting organization."
As a quick refresher, if a company wants its technology deemed essential to a technological standard, the tradeoff is that they must subsequently offer to license said technology to any interested party on fair, reasonable and non-discriminatory terms.
Apple's motion notes that the ITC decision makes it an "outlier internationally and domestically." Indeed, just yesterday we reported that Samsung is hoping to settle a pending anti-trust case with the EU amidst charges that it illegally wielded its standard essential patents (SEP) against Apple.
The decision upsets the international consensus against FRAND abuse, making the ITC an outlier among agencies and tribunals around the world. For example, the European Commission issued a preliminary determination that Samsung had violated European competition law by pursuing injunctions on FRAND patents against Apple, and Samsung has withdrawn all such injunction requests in Europe. Yet here in the United States, Samsung has continued to pursue injunctions and exclusion orders, and the ITC has now rewarded that conduct. The decision likewise goes against the jurisprudence of US courts, allowing SEP holders to evade US court decisions. As such, the decision will create a unique venue for SEP-holding plaintiffs to obtain special relief that has been rejected by the many other authorities that have considered the issue, attracting to the ITC other parties that wish to use their SEPs for hold-up.
Apple further adds that the ITC ruling runs counter to the very mission of the ITC itself, which is to protect American companies from unfair competition. The ITC ruling, Apple writes, serves the opposite purpose, which is to say that it "enables unfair competition against an American company."
Florian Mueller has made the entire order available on Scribd. It's well worth poring over if you're interested in the particulars of this case.