In my first, quick reaction to yesterday's United States Senate hearing on "Standard Essential Patent [SEP] Disputes and Antitrust Law", I mentioned that profound concern was expressed at a high level while few references were made to the specific situation concerning the ITC import ban of older iPhones and iPads over a Samsung declared-essential patent, which will take effect in a very few days (August 5) unless it is vetoed by the Obama Administration. But I also wrote that "given the concern of certain senators about the problem of SEP abuse, it's certainly possible that lawmakers have talked to the White House about the Samsung-Apple case". I guessed right. After the hearing a press release was distributed that included, as an attachment, a letter that four United States Senators wrote to United States Trade Representative Michael Froman yesterday. Ambassador Froman is in charge of the Presidential review of the ITC order (the White House delegated this task to the USTR a long time ago). Here's the letter signed by Senators Klobuchar, Lee, Boxer, and Risch (this post continues below the document):
13-07-30 Senators to USTR Letter Samsung-Apple
The signatories are
Senator Amy Klobuchar (D.-Minn.), Chairwoman of the Senate Judiciary Committee's Subcommittee on Antitrust, Competition Policy and Consumer Rights (in which capacity she presided over yesterday's hearing);
Senator Mike Lee (R.-Utah), Ranking Member of the same subcommittee and also a big-time defender of FRAND;
Senator Barbara Boxer (D.-Calif.), who is very close to the high-tech industry; and
Senator Jim Risch (R.-Idaho), who previously signed two other letters relating to injunctions over FRAND-pledged SEPs.
Three of the four senators were among the signatories of a May 2013 letter to the ITC in the build-up to the Samsung-Apple decision and also with a view to other cases.
The letter to the USTR notes that the senators "took no position on the merits of the cases then, and similarly we take no position on the merits of the case now", but it's a strong statement in and of itself that the senators go on to "urge the USTR to carefully consider" their public interest arguments. The fact that they write a letter to the USTR toward the end of the 60-day Presidential review period is an unmistakable expression of concern and, by extension, supports Apple, which is pushing for a Presidential veto.
Apple is not alone. A recent Wall Street Journal article mentioned AT&T's support (which I also blogged about) as well as that of BSA | The Software Alliance, a group that includes Microsoft, Intel, Oracle and other major tech companies. For the website of Fortune magazine (part of the CNN Money network), Senior Editor Roger Parloff wrote an opinion piece entitled "Obama should overturn an ITC import ban on Apple phones".
The Korea Times correctly summarized the position I took in a CNN.com op-ed almost two months ago, but in the meantime more information on the ITC ruling has become available and I'm now particularly concerned about the ITC's position that it's legitimate for a SEP holder to condition a licensing offer on a license to the other party's non-SEPs. One of the six chiefs of the ITC, Commissioner Dean Pinkert, also expressed concern over this one. For as much as I usually wouldn't want the ITC to be overruled, this case does raise unique and serious issues. The four bipartisan senators address some of the most important issues at a high level in their letter to Ambassador Froman.
There's a fundamental problem here that needs to be solved. And it would also be regrettable if Apple had to suffer under an outlier ruling by a government agency with quasi-judicial authority.
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