Recently, ITC (U.S. International Trade
Commission) started investigation for InterDigital’s complaint against major
foreign smartphone manufactures including Samsung that the accusers infringed
its 3G and 4G standard essential patents. This is not the first time alleging
infringement of standard essential patents and asking ban for importations of
infringed products. However, considering the current debate that increasing
activities of patent trolls and intensive smartphone patent infringement
litigations caused the current patent system in crisis, InterDigital’s
litigation will be a hard-to-decide case for ITC.
Generally, it is not presumed that holding a
patent means its owners have market power in the context of antitrust violation
analysis (35
U.S.C. Section 271(d); Illinois Tool Works Inc. v. Independent Ink, Inc.,
547 U.S. 28 (2006)). However, a standard locks in a specific industry because the products should be
compatible with the standard specifications. Thus, holding a standard essential
patent can be considered as having a market power because all products
compatible with the standard specifications should infringe the standard
essential patents. For example, the European Commission recently announced its preliminary view that Samsung's seeking of injunctive relief basis
on its 3G mobile communication standard essential patents can be considered as abuse of exclusive IPRs prohibited by EU anti-competition laws.
To avoid the antitrust issue with the
standard essential patents, therefore, a patentee should license the patents on
‘fair, reasonable and non-discriminatory (FRAND)’ terms. Thus, when a
patentee tries to obtain an injunction from courts or ITC for enjoining
potential infringers of the standard essential patents, it can be considered
as contractual violation with respect to FRAND terms. In parallel
with the current movement to limit the IPRs of standard essential patents, several
US government agencies (DOJ, USPTO, FTC) insisted that, in some instances, standard essential patents cannot be used for block sales or imports of
infringed products.
Furthermore, after the U.S. Supreme Court
decision in eBay v. MercExchange (547 U.S. 388 (2006)), federal courts are very
cautious in granting injunctive relief, especially for NPEs. Therefore, even if
ITC does not need to reflect courts’ decisions and follow other administration
agencies’ policy suggestions, InterDigital’s case will be very burdensome to
ITC’s rulings considering the fact that injunction
is its only relief.
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