As has been widely reported in the press, in the ongoing battle between Apple and Samsung, the Office of the U.S. Trade Representative, acting on behalf of the president, engaged in a policy evaluation of the June 4 orders issued by the U.S. International Trade Commission that would have prohibited Apple Inc. from importing and selling certain of Apple’s iPhone and iPad devices in the United States. This evaluation is required by Section 337 of the Tariff Act of 1930. As a result of the evaluation, on August 3, the USTR disapproved the exclusion and cease-and-desist orders in In the Matter of Certain Electronic Devices, Including Wireless Communication Devices, Portable Music and Data Processing Devices, and Tablet Computers, Investigation No. 337-TA-794.
In recent years there has been an increased use of the ITC as a forum for litigating patents, largely in view of its authority to issue such exclusionary and cease-and-desist orders against domestic entities found to have engaged in unfair methods or acts. Historically, presidential disapprovals have been a rarity — there have been only five since 1978 — and the most common bases for disapprovals have been damage to the affected industry; that the ITC order is contrary to a statutory interpretation of the executive branch; and a negative effect of the ban on the United States’ trade relations. Unlike previous presidential disapprovals, the recent rejection of the ITC ban on Apple’s importing and sales activity was based on policy considerations related to remedies for standards-essential patents subject to voluntary fair, reasonable and nondiscriminatory commitments.
