Samsung seems intent on proving the company is incapable of learning lessons from…well, anything. Bloomberg reported that Samsung wants the White House to veto an import ban on some older Samsung devices the same way an import ban on a couple of Apple devices was recently vetoed, but Samsung is relying on a false equivalence to argue that this would be “fair.”
A Tale of Two Exclusion Orders
In August, U.S. Trade Representative Michael Froman overturned an exclusion order (import ban) against some versions of Apple's iPhone 4. Samsung had won the import ban from the U.S. International Trade Commission because the iPhone model in question infringed on a Samsung patent.
Mr. Froman overturned the ban because the Samsung patent was a standards-essential patent (SEP). There was also concern over how Samsung was negotiating terms for a license to the SEP, terms that run contrary to the fair, reasonable, and non-discriminatory (FRAND) commitments Samsung had in getting its patent accepted as a SEP.
The White House has expressed concern over the use of SEPs to win import bans, a position echoed by the Department of Justice and Federal Trade Commission. The veto of Samsung's exclusion order was seen as part of the White House effort to curb abuse of SEPs.
In comparison, the exclusion order Apple won was based on utility and design patents Apple uses to differentiate its products. Apple has no FRAND commitments tied to these patents, and Apple won't license them to anyone to begin with.
Creating a False Public Perception Under the Guise of Piety
Which is why Samsung's pious bleating about being treated fairly ring false. The company wrote U.S. Trade Representative Michael Froman on August 28th, saying “The world is watching how Samsung is treated by the United States in this 'smartphone war.' The administration has a significant interest in avoiding the perception of favoritism and protectionism toward U.S. companies.”
If Apple had won an exclusion order based on SEPs, Samsung would have a great argument, but that's not the case, and Samsung's efforts to equate the two exclusion orders—to say that it must be given a pass for its infringement because Apple got a pass—is a false equivalence.
Remember that all Samsung has to do to get royalties for its SEP is to offer Apple FRAND terms. That's the case with all of the SEPs Samsung has ineffectively tried to use to defend itself against Apple non-SEP patent infringement claims.
Fighting With Only Weapons They Have
Samsung has refused to do so because its SEPs are all it has. The company has no portfolio of design and utility patents it can assert against Apple in defense because that's not how Samsung competes. Instead, the company copies its betters while draped in its own delusions of software relevance.
At every turn, Samsung has shown that it is unrepentant, that it will continue to copy where it can, that it will cheat where it can, and that it did nothing wrong by trying to extort non-FRAND terms from SEPs. That the company will publicly call for a veto on Apple's exclusion order in the name of fairness is merely the latest example.
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