Wednesday, January 2, 2013

Apple filing says Samsung should now withdraw its request for U.S. import ban (as it did in Europe)

On Monday I published and commented on Samsung's response to Apple's recent notice of new facts concerning Samsung's EU antitrust issues and its unilateral withdrawal of its European standards-based injunction requests. Today Apple filed its opposition to Samsung's motion to strike.

On the procedural side Apple argues that its December 21 notice was not too late: "Because these are new facts, Apple could not have raised them during the earlier briefing to the Commission", and Apple cites ITC precedent allowing such notices.

Apple seizes this opportunity to reinforce the points it wants to drive home, which it says are "highly inconvenient facts" to Samsung: the withdrawal of its European SEP-based injunction requests; the fact that Samsung stated publicly that it was "in the interest of protecting consumer choice"; and the fact that the European Commission nevertheless issued a Statement of Objections (SO) and held in its preliminary ruling that Samsung's pursuit of injunctive relief against Apple, a willing licensee, was anticompetitive.

The third item of Apple's brief is about Samsung's claim that the ITC investigation of its complaint against Apple has a more complete evidentiary record than the one available to the European Commission when it issued its SO. In my commentary on Samsung's response I also expressed skepticism. Apple notes that "Samsung does not address any of the specific facts that the European Commission has examined, nor identify any evidence that was before the [ITC judge] but not the European Commission". As I said before, Samsung had every opportunity to provide any exonerating evidence to the EU.

Apple then claims to have "fully mets its burden on each of its FRAND defenses", but that part is heavily-redacted.

The fifth and final paragraph is worth quoting in full:

"Moreover, Samsung ignores Samsung's own public statement admitting that its injunction withdrawals in Europe served the interests of consumers. This admission creates a clear and irreconcilable conflict between Samsung's statements in Europe and its statements to the ITC, as discussed in Apple's Notice. Simply put, Samsung's pursuit of exclusionary relief on declared-essential patents in this investigation is equally as harmful to American consumers as Samsung's pursuit of injunctions on declared-essential patents in Europe was harmful to European consumers. Having withdrawn its injunction requests in Europe, Samsung should now withdraw its exclusion-order request here. If it does not, Apple respectfully submits that the Commission should give the new facts set out in Apple's Notice due consideration as the Commission adjudicates the issues under review and the public interest."

It would obviously be in Apple's interest to have Samsung withdraw its ITC complaint (or at least the parts relating to SEPs), but Apple is nevertheless right: it doesn't make sense to pretend to protect consumer choice in one jurisdiction (Europe) -- only because of regulatory pressure -- but to continue to push for SEP-based injunctions elsewhere, particularly in the United States. I've said before that Samsung made a tactical mistake in connecting SEP-based injunction requests with consumer harm -- there is a strong and direct connection indeed, but Samsung shouldn't have acknowledged this, and especially not in public. Apple keeps trying to capitalize on that one. At the end of the day it doesn't even matter whether or not the ITC grants Samsung's motion to strike. All that really matters is the persuasive effect that the EU situation will have.

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