It seems that it’s impossible to go a week without something washing up in the wake of Apple vs Samsung. This time, the United States Department of Justice is investigating Samsung for possible abuse of its standard-essential (or FRAND) patents.
A statement filed by Apple with the International Trade Commission, filed yesterday and entered into the public record today, states that “the Department of Justice has opened an investigation into the manner in which Samsung has used–or misused–its declared-essential patents.”
If this sounds especially familiar, it could be due to the story that we ran last week about Google considering a settlement in the antitrust case that the FTC been building against them. In that case, Google claimed that many of its competitors, including Apple, had acted the same way: pursuing litigation right away without trying to licence their patents first. With Apple and Samsung at each other’s throats, it’s easy to see why Apple would claim this, but the question at hand is whether there is anything to back it up.
Florian Mueller of FOSS Patents says “I have no doubt that Apple’s representation is accurate because Apple would otherwise risk major problems with the ITC and the DoJ.” He mentions a Bloomberg article from June 30 where an unidentified source states that “U.S. antitrust regulators have agreed the FTC will focus on Motorola Mobility and the Justice Department will scrutinize Samsung Electronics Co.’s handling of industry-standard patent claims.”
There is no doubt that Apple is trying to get government authorities to investigate Samsung. This most recent incident and the investigation Apple got opened into Samsung in Korea show that the Cupertino company is doing everything in its power to get governments to do a large portion of the work against Samsung that they might have to do themselves otherwise.
Samsung Fires Back
Samsung, of course, is not taking this action laying down. The company filed a public interest statement yesterday, stating that it made a FRAND offer and that its 2.4 percent royalty demand is fair. While this may not seem like much, University of Iowa College of Law Professor Herbert J. Hovenkamp wrote in a paper earlier this month that “Permitting the owner of a FRAND-encumbered patent to have an injunction against someone willing to pay FRAND royalties is tantamount to making the patent holder the dictator of the royalties.”
Do you think that either Samsung or Apple are in the right here? Are they both just companies that, like so many these days, seem to have gone crazy for patents?