Samsung Electronics Co wants the same favor from US President Barack Obama that he gave US-based Apple Inc — the right to keep importing smartphones and tablets found to infringe the other’s patents.
Unless the White House overturns an import ban against Samsung for infringing two Apple patents, the world’s biggest maker of smartphones will see certain older models locked out of the US at midnight today Washington time.
The administration’s been in this position before. On Aug. 3, it overturned an import ban won by Samsung against older versions of Apple’s iPhone 4 and iPad 2 3G. The two companies are the biggest players in the US$279.9 billion global smartphone market, according to data compiled by Bloomberg.
Samsung says blocking one competitor’s products while letting another’s remain on the US market could be seen as pro-US bias.
“It’s frustrating for Samsung — they won a big victory against Apple, or so they thought,” said Jim Altman, of Foster, Murphy, Altman & Nickel in Washington, who represents Asian companies at the US International Trade Commission, which issued the import ban. “The president gets rid of it. And then Apple wins a victory and the president says ‘tough cookies’?”
Samsung, which reported record third-quarter profit based on sales of its smartphones on Friday, has said any ban will involve a small number of handsets.
It sold 32 percent of all smartphones worldwide in the second quarter, compared with 13 percent for Apple, according to data compiled by Bloomberg.
“The world is watching how Samsung is treated by the United States in this ‘smartphone war,’” Samsung wrote on Aug. 28 to Obama’s designee to review the case, US Trade Representative Michael Froman. “The administration has a significant interest in avoiding the perception of favoritism and protectionism toward US companies.”
Froman said in an interview with Bloomberg Television on Sunday in Bali, Indonesia, that he has not decided yet whether to issue Samsung a reprieve.
He said he has made “absolutely clear” to the company and the South Korean government that decisions have “nothing, zero, to do with the nationality of the parties involved.”
The decisions are made based on “policy judgements” over patents and “the appropriate use of exclusion orders in these cases,” he said.
Foreign companies are often concerned the US legal system favors US companies, Altman said.
“I’ve never seen any evidence of xenophobia or ‘Get the foreigners’ or ‘Protect the Americans,’” Altman said of patent disputes at the commission.
Obama has the power to overturn import bans issued by the ITC on public policy grounds. The administration’s decision cannot be appealed, while companies can take the underlying patent-infringement finding to an appeals court.
Jung Dong-joon, a patent lawyer with SU Intellectual Property in Seoul, says it is unlikely Samsung will succeed.
“There’s little chance that the US government will veto this time amid the government shutdown there now,” Jung said. “Samsung may have to take comfort from the fact that those that will be banned are old products.”