Samsung vs. Apple Needs an Obama Intervention

[Commentary] By early August, the Obama administration must decide whether to veto the U.S. International Trade Commission’s decision to bar certain Apple iPhone 4s and iPad 2s alleged to have infringed on a Samsung patent. Should it?

The president can veto the ITC's decision "for policy reasons," according to statute. But a president hasn't vetoed an ITC decision since 1987, and what spare guidance on veto decisions exists dates from a Carter-era case that had nothing to do with patents. The paucity of vetoes, and the absence of any patent-tailored standards to guide such a decision, have created the potential for an anti-consumer exclusion order from to ITC to go unchecked. The White House can remedy this problem by adopting a set of clear principles for patent infringement cases.

Here are three instances under which the president should veto an exclusion order:

• When the patent holder isn't practicing the technology itself. Courts have routinely found shutdown relief inappropriate for non-practicing entities. Patent trolls shouldn't be permitted to exclude products from our shores.
• When the patent holder has already agreed to license the patent on reasonable terms as part of standards setting. If the patent holder has previously agreed that a reasonable licensing fee is all it needs to be made whole, it shouldn't get shutdown relief at the ITC.
• When the infringing piece of the product isn't that important to the overall product, and doesn't drive consumer demand for the product at issue. There are more than 250,000 patents relevant to today's smartphones. It makes no sense that exclusion could occur for infringement of the most minor patent.

[Milch is executive vice president of public policy and general counsel of Verizon Communications]