Posted : 2013-08-04 16:41
Updated : 2013-08-04 16:41

Fears grow over US protectionism

By Kim Tae-jong

The specter of U.S. protectionism is looming large after the Obama administration vetoed a ban on the sales of some of Apple’s products ordered by the U.S. International Trade Commission (ITC), Saturday.

In a letter to ITC chief Irving Williamson, U.S. Trade Representative (USTR) Michael Froman said Saturday that it decided to overrule the ITC’s June ruling that ordered sales and import bans of older models of the iPhone and iPad for patent infringement.

This is the first time that the U.S. government has vetoed a ruling by the ITC in 25 years. The ITC is an independent federal agency that determines the impact of imports on U.S. industries and directs actions against unfair trade practices.

“After extensive consultations with the agencies of the Trade Policy Staff Committee and the Trade Policy Review Group, as well as other interested agencies and persons, I have decided to disapprove the ITC's determination to issue an exclusion order and cease and desist order in the investigation,” he said.

Immediately, Samsung expressed deep regret over the decision, although it refused to comment more on the impact on its ongoing patent dispute with Apple.

“We are disappointed that the USTR decided to set aside the exclusion order issued by the ITC, even though the decision correctly recognized that Apple had infringed upon our patents and been negotiating in a bad manner.” Samsung said in a statement.

Apple, in contrast, has welcomed the decision.

"We applaud the administration for standing up for innovation in this landmark case. Samsung was wrong to abuse the patent system in this way," it said in a statement.

The decision was apparently based on the so-called Fair, Reasonable and Non-Discriminatory (FRAND) standard introduced to prevent patent owners from abusing their power. The FRAND license standard also prevents holders of patents from denying market access to latecomers.

Apple has been arguing that the patent in question was “standard essential,” claiming that Samsung was trying to abuse the patent system.

However, the decision is reigniting a debate as it comes amid growing fears about the revival of U.S. protectionism that many argue is now protecting major U.S. enterprises from their global rivals.

Earlier in May ahead of the key ITC ruling, the U.S. Congress sent a letter calling for the ITC to take the public interest into consideration when making a final ruling over an allegation of Apple’s willful infringement of some Samsung patents.

Despite the pressure, the ITC ruled in June that Apple infringed on some patents in making smartphones and tablet computers and issued the sales and import ban on older products.

In this regard, for many, the case was regarded as a litmus test as to whether the U.S. government can be fair in cross-border patent dispute cases. Critics argue that the veto is a protectionist move, saying the USTR failed to provide enough explanation behind the decision.

It only explained that the decision was made based on Froman’s “review of the various policy considerations as they relate to the effect on competitive conditions in the U.S. economy and the effect on U.S. consumers," implying that it put more emphasis on the impact of the ITC decision rather than appropriateness of the ITC ruling itself.


The veto is expected to have a negative effect on the ITC’s final decision on Apple's patent claims against Samsung slated for Aug. 9.

The upcoming review will decide whether to uphold a preliminary ruling by the ITC that stated Samsung's older mobile devices, including Galaxy S2 models, infringed on four patents held by Apple. The final decision was originally scheduled for Aug. 1, but the ITC postponed it after the USTR decision.

Given the latest decision by the U.S. government, it is probable the ITC will decide in favor of Apple to order the import ban on Samsung’s products including Samsung's Galaxy S2 smartphone, as well as the Galaxy Tab 10.1 tablet for patent infringement.

Experts have mixed opinions about the decision by the USTR but they share the view that it will benefit consumers.

“This is a victory for consumers and fair competition,” German-based patent expert Florian Mueller wrote in his popular FossPatents blog.

“I'm sure that it wasn't an easy decision to veto the only significant win Samsung had scored against Apple in the earth-spanning patent dispute between the two companies, but this is not about taking sides with or against any particular company.”

He added the decision was all about protecting the industry standard-setting system against the abusive pursuit of injunctive relief by certain players, as Fronman made it clear that Samsung “may continue to pursue its rights through the courts.”

관련 한글 기사

미국의 보호 무역 주의 부활?

국제무역위원회(ITC)의 수입금지 결정에 대한 버락 오바마 미국 대통령의 거부권 행사로 인해 미국의 보호무역주의에 대한 우려가 커지고 있다.

마이클 프로먼 미 무역대표부(USTR) 대표는 어빙 윌리엄슨 ITC 위원장에게 보낸 서한에서 “무역정책실무협의회(TPSC), 무역정책검토그룹(TPRG), 관련 당국, 당사자와의 심도 있는 협의를 거친 결과 ITC의 수입금지 결정을 승인하지 않기로 결정했다”고 밝혔다.

프로먼 대표는 “이번 결정은 미국 경제 경쟁 여건에 미칠 영향과 미국 소비자에게 미칠 영향 등 다양한 정책적 고려에 대한 검토 내용을 기반으로 했다”고 설명했다.

ITC 결정에 대한 미국 대통령의 거부권 행사는 지난 1916년 ITC 설립 이후 단 6번 있었고, 특히 지난 1987년 로널드 레이건 대통령 이후에는 한번도 없었다.

이에 대해 삼성은 즉각적으로 유감의 뜻을 밝혔다.

삼성은 '애플이 우리 특허를 침해하고 라이선스 협상에 성실히 임하지 않았음을 인정한 ITC의 최종 판정이 받아들여지지 않은 것은 유감'이라는 공식 입장을 내놨다.

하지만 삼성은 이번 결정이 앞으로 있을 다른 특허 침해 공방에 어떤 영향을 미칠 것인가 등에 대한 언급을 피했다.

이와 반대로, 애플은 이번 결정에 대해 환영의 뜻을 밝혔다.

이번 거부권 행사는 이후 애플이 삼성을 상대로 제기한 또 다른 특허 분쟁에 대한 ITC의 결정에 부정적 영향을 줄 것으로 예상된다.

이번 판결은 이미 ITC가 예비 심사에서 밝힌 데로, 삼성이 애플의 특허를 침해했다는 결론에 이를 가능성이 높다.

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