The Android Patent War

[Commentary] How's this for an unhappy holiday surprise: An obscure federal agency could soon ban imports of popular smart phones that use Android software. On Dec 6 the International Trade Commission (ITC) is scheduled to decide if Taiwan-based, Android smart-phone supplier HTC Corp. violated four Apple patents, such as touch-screen technology.

The ITC has only one possible remedy under the law: to ban any product that infringes on intellectual property for the life of the patent. Given that the average smart phone uses more than 200,000 patents, one adverse finding could result in a ban on millions of phone imports. Blame for this potential debacle belongs to the 1930 Smoot-Hawley tariff act, believe it or not, which gave the ITC the power to resolve foreign breaches of U.S. patents. Companies now source and manufacture goods all over the world. So ITC patent cases have become popular as a weapon of protectionist mass destruction against competitors. There are 66 of these "Section 337" patent claims pending, up from 33 in 2006. The commission must by law consider the public interest and it could reject Apple's complaint on that basis. If the ITC proceeds with an exclusion order, President Obama has 60 days to overrule it, but such intervention is rare. Reagan was the last to do so. The larger absurdity is a law that could do great economic harm to one of the few U.S. industries that is growing rapidly. The ITC's role in patent law is an accident of history that is now being exploited for anticompetitive purposes and that Congress needs to correct. If the ITC blocks Android imports, President Obama will have ample cause to intervene.