Last June, ITC handed down an order banning Apple from importing older AT&T-based models of the iPhone and iPad after finding that they infringed upon a Samsung patent. The specific models encompassed by the ban include the iPhone 3G, 3GS, 4 and the first two generations of the iPad.
The ITC ruling is final, and the only way for Apple to get around it is to secure a presidential veto.The ban is scheduled to go into effect on August 5th, and while the iPhone 3G and 3GS aren't active devices in Apple's product line, the iPhone 4 still continues to sell impressively well. Consequently, Apple isn't the only entity worried about the impending product ban. To that end, Verizon lawyer Randal Milch penned an article in today's Wall Street Journal imploring President Obama to step in and veto the ITC ban. Remember that the ban only affects AT&T-based models of the iPhone, but Verizon sees a larger public policy issue here that needs addressing.
Unless the administration intervenes, the ban could be in effect by August 5. High-tech products can implicate thousands of patents. If the ITC finds that a product infringes even a single one, it can stop the product at the border. But that's basically it. The commission can't levy much in the way of a lesser penalty. In the end the consumer suffers when the use of such an enforcement tool is unwarranted.
What we have warned is that patent litigation at the ITC-where the only remedy is to keep products from the American public-is too high-stakes a game for patent disputes. The fact that the ITC's intellectual-property-dispute docket has nearly quadrupled over 15 years only raises the stakes further.
It remains to be seen if Obama ultimately decides to intervene, but history certainly isn't on Apple's side. The last U.S. President to veto an ITC import ban was Ronald Reagan who did so in 1987.
Indeed, Milch articulates that the dearth of Presidential vetos over the last few decades underscores the notion that the import-ban power wielded by the ITC is unchecked.
Apple, meanwhile, filed a motion a few weeks ago arguing that if the ITC ban is upheld, it will make the ITC an "outlier internationally and domestically" to the extent that the ruling renders "meaningless a FRAND commitment made to a standard-setting organization."
Recall that the Samsung patent at issue here is subject to a technological standard, meaning that Samsung is obligated to license it to Apple on fair, reasonable, and non-discriminatory terms.
Apple also pointed out that the ruling runs counter to the very mission of the ITC itself, which is to protect American-based companies from unfair competition.