Samsung is still trying to win a U.S. import ban against Apple. While it can't appeal the Obama Administration's veto of the ITC's decision with respect to a standard-essential patent, it is seeking appellate review of the ITC's simultaneous and unfavorable liability findings with respect to other patents-in-suit. The ITC ruling came down in early June, and in mid-July Samsung filed the following notice of appeal with the United States Court of Appeals for the Federal Circuit (this post continues below the document):
The notice of appeal lists three patents with respect to which the ITC affirmed the Administrative Law Judge's findings of no violation. But Samsung has yet to file its opening brief, and it's not a given that it will pursue all three patents on appeal. In particular, Samsung won't win an import ban over U.S. Patent No. 7,486,644 on a "method and apparatus for transmitting and receiving data with high reliability in a mobile communication system supporting packet data transmission", another UMTS declared-essential patent. Even if Samsung achieved a reversal of the ITC's finding of no liability, the public-interest rationale underlying the Obama Adminstration's veto wouldn't be different from the situation surrounding the '348 patent, over which the ITC wanted to order an import ban.
Maybe Samsung will pursue an appeal with respect to the '644 patent anyway -- even though it won't obtain any remedies from the ITC -- and then go back to district court for a damages award. But it might as well abandond this patent on the ITC track and ask the United States District Court for the District of Delaware to resume the proceedings with respect to Samsung's SEPs, as I suggested in a Sunday post. Samsung is free to seek FRAND compensation in district court.
For the reasons I explained, only the two non-standard-essential patents at issue in Samsung's appeal could potentially result in an import ban:
U.S. Patent No. 6,771,980 on a "method for dialing in a smart phone"
U.S. Patent No. 7,450,114 on "user interface systems and methods for manipulating and viewing digital documents"
Back in October I analyzed the Administrative Law Judge's initial determination and concluded that the '348 patent -- the SEP over which Samsung won the ban that got vetoed -- was its best shot. The other SEP appeared to be a "steep challenge", but still Samsung's second-best shot. The two non-SEPs, however, are long shots:
The '114 patent on manipulating and viewing digital documents was "probably the most difficult patent for Samsung to prevail on". The judge and the ITC staff agreed that it was invalid, for multiple reasons. Even if Samsung overcame the finding of non-novelty, "there would still be multiple ways to prove it obvious". Infringement is a close call: the judge didn't find an infringement, while the staff did.
The '980 patent for a dialing method was not found infringed (neither by the judge nor the staff). If a broader claim constructions resulted in a finding of infringement, Samsung might still not satisfy the ITC's domestic industry requirement, but even if it did, a broad interpretation could render the patent invalid. Still, the '980 patent appears more interesting (relatively speaking) to me than the '114 patent. But neither of these non-SEPs is, in my view, worth the delay of a potential damages award in district court over the '348 patent.
Parties have appealed (unless the disputes were settled) pretty much all of the ITC decisions in the smartphone patent cases I watch, and some other appeals were no less of a long shot than Samsung's latest appeal.
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