One thing that has frustrated many followers of the Samsung-Apple ITC case is the currently unavailability of a public version of the Commission’s Final Determination. Generally, the only insight into the ITC’s reasoning came from the limited information in the Commission’s Notice of Final Determination. But for those of you who are interested, we thought it’d be worth taking a look at the publicly-available documents that spell out the specific exclusionary relief awarded to Samsung in this case:
After the jump, we’ll dive into these in a little more detail.
Limited Exclusion Order (LEO)
The LEO prohibits the following articles from being imported into the United States:
Electronic devices, including wireless communication devices, portable music and data processing devices, and tablet computers, covered by one or more of claims
75-76 and 82-84 of the ’348 patent and that are manufactured abroad by or on behalf of, or imported by or on behalf of, Respondent [Apple] or any of its affiliated companies, parents, subsidiaries, or other related business entities, or their successors or assigns.
As we’ve explained before, the ITC found that only certain AT&T versions of the iPhone (3G, 3GS, 4) and iPad (original 3G and iPad 2 3G) infringe Samsung’s patent, so these are the only Apple devices that currently fall within the scope of the LEO.
The LEO also provides for some exceptions that allow Apple to continue to import these devices. First, Apple can continue to import these devices until the Obama Administration’s U.S. Trade Representative decides whether or not to veto the ITC’s decision, which can take up to 60 days — and Apple was not required to pay a bond, so there’s no penalty for them to continue importing during the Presidential Review Period. Second, any licensed products may be imported, so if Apple takes a license from Samsung, the LEO will not apply. Third, Apple can continue to import refurbished iPhones and iPads (that would normally be covered by the LEO) until June 3, 2015, as long as these are used as replacements for identifical iPhones/iPads that were imported before the exclusion order went into effect. Finally, Apple is permitted to import any covered iPhones/iPads for use by the U.S. government (with the government’s authorization/consent).
Cease & Desist Order (CDO)
While the LEO prevents entry of items into the United States, the CDO targets products that are already in domestic inventory. The CDO covers the same models of iPhones and iPads as the LEO, and applies not just to Apple, but also its “principals, stockholders, officers, directors, employees, agents, licensees, distributors, controlled (whether by stock ownership or otherwise) and majority-owned business entities, successors, and assigns,” insofar as each is engaging in prohibited conduct for/with/on behalf of Apple. The prohibited conduct includes:
- import or sell for importation into the United States infringing iPhones/iPads;
market, distribute, sell, or otherwise transfer (except for exportation), in the
United States infringing iPhones/iPads;
- advertise infringing iPhones/iPads;
- solicit U.S. agents or distributors for infringing iPhones/iPads; or
aid or abet other entities in the importation, sale for importation, sale after
importation, transfer, or distribution of infringing iPhones/iPads.
As you can see, the CDO is wide-ranging, and shuts down a large variety of Apple’s domestic sales, marketing, and distribution activity relating to the infringing models of iPhones and iPads. For example, Apple’s website currently offers the iPhone 4 for sale on the AT&T, Verizon, and Sprint networks — once the CDO goes into full effect, Apple won’t be able to offer for sale (or even advertise at all) the AT&T model. Apple is also required to adhere to certain reporting and record-keeping requirements until after its domestic inventory of the infringing iPhones and iPads is exhausted.
The Presidential Review Period applies to the CDO as well, so Apple can continue its domestic activities until the U.S. Trade Representative chooses whether or not to veto the ITC’s decision. And the same limitations with respect to refurbished products, licensed products, and products for use by the U.S. government apply with equal force to the CDO as to the LEO.