#19: Sansung and Apple: At it again...

Disputes between Samsung and Apple continue this week as a ruling is due on May 31^st regarding Apples infringement on U.S. Patent No. 7,706,348. This issue has to do with the scope of the import ban, should one be ordered. Here is a link to read more about the specific patent http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=7,706,348.PN.&OS=PN/7,706,348&RS=PN/7,706,348. 348 is described as an “apparatus and method for encoding/decoding transport format combination indicator in CDMA mobile communication system.” The main issue is outlined in the statement below. 

"4. With respect to the '348 patent, Samsung’s infringement case before the Commission relied upon accused third and fourth generation Apple products that operate on the AT&T wireless network. If the Commission were to issue remedial orders covering articles covered by the asserted claims of the ’348 patent, would such an order cover (a) Apple products that operate on other wireless networks in the United States, and (b) later generation Apple products (e.g., iPhone 5, later iPad versions)?"

Basically, in the proceedings before the ALJ Samsung accused only older Apple products of infringement of the '348 patent: the AT&T models of the iPhone 4 (but not the 4S or 5), 3GS and 3, and of the iPad 3G and iPad 2 3G. Apple did not believe that Samsung could enforce and exclusion order against newer Apple products because of technical reasons. The Office of Unfair Import Investigations (“ITC” staff) acknowledged that there is no evidence in the record concerning other networks or newer Apple products. If any exclusion order were to be issued the ITC staff agreed it should include a certification provision to help enforce the ban.  The U.S. Bureau of Customs and Border Protection would have to decide on a case-by-case basis whether future products could be in the scope of this infringement through a certifications process or scope ruling.

Now Samsung is taking the dispute to another level as the company is taking the position that that not only the AT&T versions of the accused iPhones and iPads but versions sold by other carriers infringe and should fall within the scope of this import ban.

"At the time the complaint was filed, Apple's iPhones and iPads with UMTS connectivity were only available through AT&T. Since then, Apple has expanded its sales to other UMTS carriers. Because all iPhone 4 (UMTS version) and iPad 2 (UMTS version) devices infringe the asserted claims of the '348 patent, regardless of carrier customer, they would be subject to the Commission's remedial orders. However, AT&T remains the largest UMTS iPhone 4 carrier by volume. [...].

Based on Samsung's understanding, the current configurations of the iPhone 4 (CDMA version), iPhone 4S, iPhone 5, iPad 2 (CDMA version), iPad (third and fourth generations) and iPad mini contain [REDACTED]. Accordingly, unless these devices are altered to incorporate [REDACTED], they would not be subject to an exclusion order or cease and desist order. Similarly, future devices incorporating [REDACTED] would not be subject to an exclusion order or cease and desist order."

If there is a ban on older iPhones and iPads, Apple will only be affected at the low end and the repair business. They could delay before the ban takes place and solve the majority of the problem. Is it likely that the ITC will ban any Apple products? Especially as Samsung failed to comply with its FRAND licensing obligations? And if it does happen would the impact even be very significant?