Skip to main content

Samsung dropped a nuclear patent on Apple

By Florian Mueller, Special to CNN
updated 1:48 PM EDT, Thu June 6, 2013
Apple's older iPhone models ran afoul of Samsung patents, according to the U.S International Trade Commission.
Apple's older iPhone models ran afoul of Samsung patents, according to the U.S International Trade Commission.
STORY HIGHLIGHTS
  • U.S. government agency gave Samsung a victory over Apple in patent dispute
  • Florian Mueller: President Obama can veto the ruling, but he shouldn't get mired in it
  • He says what's really at state are standard-essential patents
  • Mueller: Congress can abate mobile patents wars by disallowing bans over SEPs

Editor's note: Florian Mueller is an intellectual property blogger and consultant on wireless devices. His clients include Microsoft, Oracle, financial services companies and law firms. He is based in Munich, Germany.

(CNN) -- This week, the U.S. International Trade Commission made a decision that sent shock waves around the world.

The governmental agency banned the importation of Apple's older iPhones (before the 4S) and cellular iPads (before the third-generation iPad 4G) into the U.S. market. These devices were found to violate a Samsung patent necessary to connect with AT&T's cellular network. Simply put, if you're an AT&T customer, your phone is not a phone without a technology that Samsung owns.

Customs officers will hold any Apple shipments coming from China in 60 days if they contain those older products unless an appeals court sides with Apple or President Barack Obama vetoes the order.

The president has delegated this decision-making power to the U.S. trade representative, but obviously, he can still do what no U.S. president has done in decades.

However, he shouldn't get mired in this particular battle.

Florian Mueller
Florian Mueller

A veto would be consistent with a set of patent reform proposals the White House unveiled a few hours before the ITC's decision, which would make it harder to obtain such bans. But it would mean depriving Samsung of its most significant victory in a bitter legal spat with Apple and interfere in the intense two-horse race going on in the smartphone market.

A veto would also snub a major U.S. trading partner and geopolitical ally: South Korea, where Samsung accounts for about a fifth of the national economy. The South Koreans would certainly cry foul over "protectionism."

The good news for Apple is that most of the affected products are no longer on sale. The ones that are still being sold are Apple's lowest-priced entry-level offerings. As soon as Apple launches the iPhone 5S, the iPhone 5 will replace the 4S as the mid-priced product. The iPhone 4S, which is also safe, will then become the low-end iPhone.

Samsung takes aim at Apple

Until this happens, we're talking about 1% of Apple's sales -- less, actually, because AT&T can buy as many iPhone 4 and iPad 2 units over the next 60 days as it wants and sell them afterward. And customers still have different models from which to choose.

But there's a bigger reason for concern.

What Samsung dropped on those older Apple products is the patent equivalent of a nuclear bomb, and a U.S. government agency with court-like powers said: "Yes, Samsung, you're in your right to use this lethal weapon, and we don't care that Apple claims it's been universally outlawed."

Next time someone -- not necessarily Samsung, which could even find itself on the receiving end -- will use patents of this kind, called standard-essential patents, to nuke products that jobs depend on and that customers will sorely miss. And next time could be a matter of months because various other ITC cases over standard-essential patents are pending and will come to judgment soon. That's the real concern. Not the iPhone 4.

Why are standard-essential patents the equivalent of a nuclear weapon?

Because there are industry standards that establish the use of certain techniques. Unless your phone and mine use the same standard, we can't give each other a call or send each other a photo because the devices we use won't understand each other. This is called interoperability -- working together. When companies get together and define a standard, they have to promise to use these patents only as parking meters, not as guns.

Conventional patents, such as the ones Apple is suing Samsung over, don't raise the same issues.

For example, Apple is suing Samsung over a feature called "rubber-banding." It's the iconic bounce-back effect when you scroll a list (such as your phone's address book) and reach the end. I like it, but if you have rubber-banding and I don't, we can still keep in touch. No nuclear threat there.

Congress should work with the president and denuclearize the mobile patents wars by disallowing import bans over standard-essential patents. Now.

Follow @CNNOpinion on Twitter.

Join us at Facebook/CNNOpinion.

The opinions expressed in this commentary are solely those of Florian Mueller.

ADVERTISEMENT
Part of complete coverage on
updated 2:45 PM EDT, Thu April 17, 2014
Michael Bloomberg and Shannon Watts say Americans are ready for sensible gun laws, but politicians are cowed by the NRA. Everytown for Gun Safety will prove the NRA is not that powerful.
updated 9:28 AM EDT, Thu April 17, 2014
Ruben Navarrette says Steve Israel is right: Some Republicans encourage anti-Latino prejudice. But that kind of bias is not limited to the GOP.
updated 7:23 PM EDT, Wed April 16, 2014
Peggy Drexler counts the ways Phyllis Schlafly's argument that lower pay for women helps them nab a husband is ridiculous.
updated 12:42 PM EDT, Wed April 16, 2014
Rick McGahey says Rep. Paul Ryan is signaling his presidential ambitions by appealing to hard core Republican values
updated 11:39 AM EDT, Wed April 16, 2014
Paul Saffo says current Google Glasses are doomed to become eBay collectibles, but they are only the leading edge of a surge in wearable tech that will change our lives
updated 2:49 PM EDT, Tue April 15, 2014
Kathleen Blee says the KKK and white power or neo-Nazi groups give haters the purpose and urgency to use violence.
updated 7:56 AM EDT, Wed April 16, 2014
Sen. Sheldon Whitehouse and Rep. Henry Waxman say read deep, and you'll see the federal Keystone pipeline report spells out the pipeline is bad news
updated 7:53 AM EDT, Wed April 16, 2014
Frida Ghitis says President Obama needs to stop making empty threats against Russia and consider other options
updated 5:29 PM EDT, Tue April 15, 2014
Peter Bergen and David Sterman say the Kansas Jewish Center killings are part of a string of lethal violence in the U.S. that outstrips al Qaeda-influenced attacks. Why don't we pay more attention?
updated 12:41 PM EDT, Tue April 15, 2014
Danny Cevallos says families of the passengers on Malaysian Airlines Flight 370 need legal counsel
updated 11:23 AM EDT, Mon April 14, 2014
David Frum says Russia is on a rampage of mischief while Western leaders and Western alliances charged with keeping the peace hem and haw
updated 7:56 AM EDT, Mon April 14, 2014
Most adults make the mistakes of hitting the snooze button and of checking emails first thing in the morning, writes Mel Robbins
updated 1:54 PM EDT, Mon April 14, 2014
David Wheeler says as middle-class careers continue to disappear, we need a monthly cash payment to everyone
updated 7:55 AM EDT, Mon April 14, 2014
Democrats need to show more political spine when it comes to the issue of taxes.
updated 11:55 AM EDT, Mon April 14, 2014
Donna Brazile recalls the 50th Anniversary of the Civil Rights Act as four presidents honored the heroes of the movement and Lyndon Johnson, who signed the law
updated 9:17 AM EDT, Mon April 14, 2014
Elmer Smith remembers Chuck Stone, the legendary journalist from Philadelphia who was known as a thorn in the side of police and an advocate for the little guy
updated 2:56 PM EDT, Sun April 13, 2014
Al Franken says Comcast, the nation's largest cable provider, wants to acquire Time Warner Cable, the nation's second-largest cable provider. Should we be concerned?
updated 11:22 AM EDT, Fri April 11, 2014
Philip Cook and Kristin Goss says the Pennsylvania stabbing attack, which caused grave injury -- but not death, carries a lesson on guns for policymakers
updated 3:06 PM EDT, Fri April 11, 2014
Wikipedia lists 105 football movies, but all too many of them are forgettable, writes Mike Downey
updated 10:32 AM EDT, Fri April 11, 2014
John Sutter and hundreds of iReporters set out to run marathons after the bombings -- and learned a lot about the culture of running
updated 12:49 PM EDT, Fri April 11, 2014
Timothy Stanley says it was cowardly to withdraw the offer of an honorary degree to Ayaan Hirsi Ali. The university should have done its homework on her narrow views and not made the offer
updated 10:16 AM EDT, Fri April 11, 2014
Al Awlaki
Almost three years after his death in a 2011 CIA drone strike in Yemen, Anwar al-Awlaki continues to inspire violent jihadist extremists in the U.S, writes Peter Bergen
updated 9:21 PM EDT, Fri April 11, 2014
David Bianculli says Colbert is a smart, funny interviewer, but ditching his blowhard persona to take over the mainstream late-night role may cost him fans
updated 1:31 PM EDT, Thu April 10, 2014
Rep. Paul Ryan says the Republican budget places its trust in the people, not in Washington
updated 5:28 PM EDT, Thu April 10, 2014
Aaron David Miller says Obama isn't to blame for Kerry's lack of progress in resolving Mideast talks
updated 11:22 AM EDT, Mon April 14, 2014
David Weinberger says beyond focusing on the horrors of the attack a year ago, it's worth remembering the lessons it taught about strength, the dangers of idle speculation and Boston's solidarity
updated 12:32 PM EDT, Thu April 10, 2014
Katherine Newman says the motive for the school stabbing attack in Pennsylvania is not yet known, but research on such rampages turns up similarities in suspects and circumstances
updated 2:39 PM EDT, Wed April 9, 2014
Wendy Townsend says the Rattlesnake Roundup -- where thousands of pounds of snakes are killed and tormented -- is barbaric
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT