삼성, 애플과의 특허전쟁 관련하여 가혹한 ITC 결정이 내려질지도..
지난 2012년 10월24일에 삼성 제품들이 애플의 특허 4가지를 침해한 것으로 예비판정을 한 바 있었다.
이 예비판정에 관련하여 Pender 판사가 최종 판정을 위한 결정 및 권고안을 작성하여 ITC의 전자문서 시스템에 입력하였다. 이 권고안에는 삼성의 침해에 대한 구제 내용을 포함하고 있다.
이 권고안이 채택되면 삼성은 다음의 몇 가지 가혹한 처분을 받게 될 것으로 보인다.
- ITC 최종결정 이후 60일간의 대통령 재가 기간이 종료하면 수입금지가 발효된다.
- 이미 수입되어 있는 침해품에 대해서는 상업적으로 의미있는 양의 판매를 하여서는 아니된다.
- 침해로 인정된 모든 휴대폰 판매가격의 88%, 모든 미디어 플레이어 가격의 32.5%, 모든 태블릿 컴퓨터 가격의 37.6%을 대통령 재가 기간 동안 보증금으로 예탁하여야 한다.
Pender 판사의 권고안은 ITC의 최고위 의사결정체인 6인 위원회가 검토할 것이다.
실무판사의 권고안이 삼성에게 매우 불리하게 작성된 것은 삼성의 입장에서 크게 신경쓰이는 일이긴 하다.
하지만, 그 동안 삼성의 디자인 회피 노력과 함께, 애플의 주요 특허들이 미국특허청에서 특허성이 연거푸 부정되고 있으므로, 삼성의 입장이 최악의 상황은 아니라고 할 수 있다.
여하튼 ITC 위원회의 최종 결정이 어떤 방향성을 띨지 초미의 관심거리이다.
An October 24, 2012 preliminary ruling that held Samsung to infringe four Apple patents could have more drastic consequences for Samsung's U.S. business than previously known. Late on Friday, a public redacted version of the full-length version of Judge Pender's initial determination and recommendation on remedy and bond entered the ITC's electronic document system. If the U.S. trade agency affirms the judge's findings of violations (which the ITC staff supports across the board) and adopts his recommended remedies, Samsung faces the following draconian combination of sanctions:
a U.S. import ban that would enter into effect after the 60-day Presidential review period following a final ITC decision,
a simultaneous cease-and-desist order that would prohibit the sale of any commercially significant quantities of the imported infringing accused products in the United States (this remedy was denied against HTC), and
the requirement to post a bond of 88% of the value of all mobile phones, 32.5% of the value of all media players, and 37.6% of the value of all tablet computers found to infringe Apple's patents-in-suit during the Presidential review period.
By comparison, Samsung argued that a 4.9% royalty rate was a more appropriate bond amount. Judge Pender adopted Apple's proposed methodology and rates, based on a "price differential analysis". The ITC staff supports that approach in principle and is fine with the bond rates for tablets and media players, but says that the 88% rate for mobile phones is based on too high a price differential between the two companies' products because Samsung sells significant quantities of phones at a much lower price point, such as $200 (compared to a $600 non-subsidized iPhone), and the ITC staff believes that those lower-cost phones don't really compete with Apple's offerings and shouldn't be taken into account for the purpose of a price differential analysis. But Judge Pender points to an internal Samsung presentation according to which the U.S. mobile phone market was "becoming a Two Horse Race Between Apple & Samsung" and which suggested a strategy of undercutting Apple.
Judge Pender notes that Samsung claimed a price differential analysis is not adequate and warns Samsung that if it "continues to press" this argument, he would recommend to raise the bond rate to 100% for all infringing products sold during the 60-day Presidential review period.
The judge's recommendations are all subject to a review by the Commission, the six-member decision-making body at the top of the ITC.
While all of this looks like a potential worst-case scenario for Samsung, the picture is not that bleak. Judge Pender cleared various Samsung designarounds, and if those designarounds are not only legally safe but also technically adequate and commercially viable, Samsung can keep importing and selling. I'm still trying to learn more about those designarounds and may do a follow-up post on that subject. And while patent reexaminations take time (a lot more time than ITC investigations), Apple's winning patents are under pressure. A first Office action by the USPTO tentatively rejected all claims of the "Steve Jobs" touchscreen heuristics patent, which is at issue in this ITC investigation, and recently an anonymous reexamination request against another patent-in-suit (one that covers translucent images) became known.
If those mysterious designarounds enable Samsung to continue to do well in the U.S. market, an ITC order based on Judge Pender's recommendations could still create logistical complications for its U.S. business. For example, during the short Presidential review period, it might have to post a bond even on products that already have been designed around the patents-in-suit. Also, customs officers may hold up shipments of designaround products until they are certain that an exclusion order doesn't apply to them. And Samsung is worried that this could also affect other electronic media devices, including televisions, laptops, non-smartphone mobile phons, cameras and camcorders, or standalone components, even though Apple did not accuse any of those kinds of products of infringement. It wants some "special guidance" to be given to customs, but Judge Pender is against that proposal.
On a related note, Reuters' Dan Levine yesterday reported on Apple's decision to drop, for the time being, any charges against the Samsung Galaxy S III mini in the parties' second California litigation (a case that is scheduled to go to trial in 2014), based on Samsung's representation that it does not sell the device in the U.S. and only for as long as Apple believes that this representation is still accurate. Apple's lawyers bought various units of the S III mini from U.S. retailers such as Amazon, but it appears that Samsung is not actively selling and marketing it in the United States, so whoever sells it has to take the initiative to source it from other countries. I don't know if Samsung had a particular market-specific reason for which it thought U.S. consumers would not be interested in the S III mini, or whether this strategy of saying "we make the product but sell it only in other countries" is, possibly in no small part, a response to Samsung's patent infringement issues in the dispute with Apple. Theoretically Apple could sue resellers over that device, but those are also customers of Apple's own products and it may not be worth the hassle for only one particular device.