White House Disapproves ITC Exclusion Order Against Apple iPhone: U.S. Trade Representative Finds Exclusion Order Violates Administration’s Policy in Favor of Licensing Standard-Essential Patents on FRAND Terms

Sullivan & Cromwell LLP - August 5, 2013

On August 3, 2013, the U.S. Trade Representative (“USTR”) issued a determination disapproving – vetoing – an ITC exclusion order that would have prohibited Apple from importing certain mobile devices that the ITC had determined infringed a standards-essential patent owned by Samsung. The USTR found that enforcement of the exclusion order would not be in the public interest, where the ban could give the patentee “undue leverage” and would violate the Obama Administration’s policy in favor of licensing standard-essential patents (“SEPs”) on fair, reasonable and non-discriminatory (“FRAND”) terms. This is the first time the White House has rejected an ITC exclusion order since 1987.