In a letter to the agency that President Obama has delegated the authority to override US International Trade Commission embargo orders, Apple is requesting a rare Presidential veto. The letter to the United States Trade Representative requests that a veto of the order banning import of the AT&T iPhone 4 and iPad 2
be entered, as the ITC ruling in Apple's view sets a dangerous precedent for future ITC rulings and "makes the ITC an outlier internationally and domestically" in its ongoing patent legal battles with Samsung.
Apple is currently in the middle of a 60-day waiting period following an ITC embargo order on the iPhone 4, and iPad 2 by the regulatory agency. ITC orders generally pass the 60 days unvetoed by the President. Following the Presidential review, Apple has the option of appealing at the US Court of Appeals for the Federal Circuit to attempt to stop the embargo.
Apple believes that the embargo will "have grave consequences if left unchanged" In its filing, Apple pointed out that the ITC suggested that Apple pay a fair, reasonable, and non-discriminatory patent licensing rate "on a patent adjudicated to be neither infringed nor essential." Furthermore, should this ruling trend continue, Apple believes that the ruling "could well cause other jurisdictions to reverse course and begin excluding American goods -- including computers, mobile devices, and other consumer electronics -- from their markets based on FRAND-committed patents. The United States would be unable to protest, given the actions of its own ITC."
Despite rulings in the US and in other countries
, and repeating previous statements by the Korean manufacturer, a Samsung filing with the US Trade Representative calls Apple an "unwilling licensee to Samsung's portfolio of declared essential patents, including the '348 patent at issue here."
Patent analyst Florian Mueller
finds the ITC ruling disagreeable, and controversial. Regarding Samsung's filing, Mueller states that "there's nothing that would have stopped Samsung from asking a district court to award damages for past SEP infringement and postjudgment royalties for future use. That's what Samsung could and should have done instead of seeking an ITC import ban."
Samsung says it has never refused licensing standards essential patents. In its filing, it says that "Samsung has always honored its commitment to license its declared-essential patents on FRAND terms and conditions. Samsung has never refused to license its SEPs to other companies, including direct competitors like Apple. And Samsung has never offensively used its patents, essential or not, to keep competitors out of the market." Not addressed in Samsung's statement is the fact that no jurisdiction worldwide has found its consistent demand for 2.4 percent
of a device's entire sale price an acceptable FRAND rate.