Late on Thursday, the United States International Trade Commision (USITC, or just ITC) gave notice of a scheduling decision concerning the investigation of Samsung's complaint against Apple. A previous (not the first) extension of the target date was ordered about three weeks ago, pushing it back from January 14 to February 6 and mentioning "numerous submissions" concerning the FRAND issues raised by the standard-essential ones among Samsung's patents-in-suit. The Thursday notice now postpones the target date to March 7, 2013, i.e., by four weeks plus one day, and does not state or hint at any particular reason.
I believe what mostly complicates this case for the ITC is an interesting combination of antitrust actions in the Unitd States and the European Union. On the one hand, there's the FTC-Google settlement, which occurred shortly after the ITC's previous extension of the target date. It's not binding precedent, but it does bear some weight as the ITC is generally required under the law to take its sister agency's input into consideration. The logic of the proposed FTC-Google deal is that injunctive relief must be denied against "willing licensees". Here are some links on this subject: explanation of mechanics, comparison of FTC-Google and FTC-Bosch settlements, defensive use exception as primary concern (not an Apple-Samsung issue, at least for now). In December Apple notified the ITC of the European Commission's Statement of Objections (SO) against Samsung. The SO is a preliminary antitrust ruling, following almost a year of in-depth investigations. Samsung wants the ITC to ignore Apple's notice of the SO, while Apple says that Samsung should now withdraw its ITC complaint (with respect to SEPs) just like it withdrew its European SEP-based injunction requests last month. The details of the European Commission's SO are not public, but the EU's official written statements show that Apple was deemed to be a willing licensee -- which combined with the logic of the FTC-Google deal should put the SEP-based parts of Samsung's ITC complaint to rest.
Samsung had brought the related complaint in late June 2011. The investigation was instituted a month later.
Apple had filed its ITC complaint against Samsung in early July, a little over a week after Samsung's complaint. Last week the ITC also delayed the resolution of that investigation, with the target date for the final ruling having been set to March 27. Apple's complaint does not raise any FRAND issues. I have yet to see an Apple complaint over standard-essential patents (SEPs) in any forum.
SEPs are involved in Ericsson and Samsung's complaints against each other, and the recently-instituted investigation of Ericsson's complaint is now at the stage of making some initial scheduling decisions. In particular, the Administrative Law Judge has to set a target date for the investigation. He has already -- but only tentatively -- scheduled an evidentiary hearing (i.e., a trial) for August 13-20, 2013. That is a fairly ambitious schedule: as the ITC staff (the Office of Unfair Import Investigations) notices in a submission, this "would result in an approximately 14 month target date". By contrast, Samsung proposes a 20-month schedule. The ITC staff comes down right in the middle and believes that this case involving over 100 claims from 11 different patents should have a 17-month target date.
The ITC is in a matter of days going to vote on whether to investigate Samsung's countercomplaint against Ericsson, and I'm sure that it will institute an investigation. In this context, Apple made a submission that accused Samsung of "now expanding its [FRAND-related] misconduct" from 3G (UMTS) to 4G (LTE) patents. Apple's letter notes that general concerns over injunctive relief based on SEPs also relate to Ericsson's assertions of such patents.
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