I'm not sure about the merits of the US International Trade Commission's recent rulings against Apple and Samsung, which ban the sale of certain of each company's devices because of patent disputes with the other, but at least they give the appearance of consistency.
The Obama administration hasn't been consistent in all policies, but they have an easy opportunity to do so now, by vetoingjust as .
It's really not a hard decision. Whatever the merits of the claims, by allowing this new ruling to stand the administration would be sending a message of overt and hypocritical protectionism against a close ally and major trade partner.
In his letter justifying the veto of the sale ban against Apple, US Trade Representative Michael Froman cites a policy statement earlier this year from the Department of Justice and US Patent and Trademark Office about holders of SEPs (standards-essential patents) "…gaining 'undue leverage' and engaging in 'patent hold-up', i.e., asserting the patent to exclude an implementer of the standard from a market to obtain a higher price for the use of the patent than would have been possible before the standard was set, when alternative technologies would have been chosen."
Perhaps I missed it, but I don't think he actually says that any of the patents involved in the ITC ruling he overturned were SEPs, but citing the policy statement gives at least a veneer of legal justification for his decision.
He also said that the decision was made based on '…the effect on competitive conditions in the U.S. economy and the effect on U.S. consumers'. What would the effect of banning certain Samsung devices be on the U.S. economy and its consumers? Not good.
Froman concludes the letter by noting that '…the patent owner [i.e. Samsung] may continue to pursue its rights through the courts'. The same is obviously true of Apple in this case.
There may be differences in the relative merits of the patent claims on each side which would argue for upholding this new ruling and overturning the old one. Even to the extent that those points are valid they don't necessarily justify a trade ban, in light of the previously-mentioned policy paper. At the same time, those points would be within the grasp of very few, while the political and trade implications of upholding the new ruling are only too obvious.
The implication is clear: The administration must once again delegate a decision to Ambassador Froman and he must overturn the similar decision for the same reasons. Let the parties duke it out in the courts.