New Phase in Patent War

Attention is being paid to whether or not the US International Trade Commission (ITC) will ban the import of Samsung Electronics products with President Barack Obama having exercised his veto against the import prohibition on Apple’s products. Although intellectual property experts are predicting an import ban based on the principle of equity, there is a possibility that the ruling could be overturned as criticism of trade protectionism is on the rise. 

“The ITC has imposed an import ban on Apple, which violated standard patent rights, and thus it is likely to take similar action against Samsung that infringed upon general patents,” said Jeon Jong-hak, vice chairman of the Korea Patent Attorney Association, adding, “The Obama administration mentioned the FRAND principle, but there is no reasonable ground for Samsung Electronics.” Senior patent attorney Kang Min-soo at KwangGaeTo Lab echoed the sentiment by saying, “Many industry insiders are taking the ITC’s import prohibition for granted since it is general patents that Samsung violated.”

In the meantime, it is pointed out that Korean companies need to change their patent management strategies under the circumstances. “The recent move by the US government is like a message urging Korean companies to focus more on patent infringement and damage suits at the federal courts than those at the ITC, which have led to the prohibition of imports and even sales with even just minor infringements on just part of a product,” said Ham Yoon-seok at US IP firm LHHB, who is a former Korean American Intellectual Property Bar Association (KAIPBA) chairman. He continued, “Therefore, an increasing number of Korean companies will change their strategies from driving competitors out of the market by means of the ITC to receiving compensation for damages related to their patent rights.”

At the same time, some experts are stressing that non-practicing entities (NPEs) would file more suits with the ITC. “If the ITC imposes an import ban on Samsung, NPEs will realize that they can file patent suits more effectively,” said the patent attorney Kang, remarking, “It is difficult for companies to come up with countermeasures because there have been few precedents concerning ITC lawsuits.”

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