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Wednesday, October 24, 2012, 03:44 pm PT (06:44 pm ET)

Apple says Samsung being investigated by DoJ over FRAND patent misuse

In a filing with the U.S. International Trade Commission on Monday, Apple said that the Department of Justice has opened an investigation into whether Samsung misused standards-essential patents as weapons against rival handset makers.

First discovered by FOSS Patents' Florian Mueller, Apple's filing regarding a "statement on public interest considerations" was part of a separate ITC complaint made public on Tuesday.

From Apple's ITC filing:
Regulators likewise have continued to scrutinize these problems, including in the specific context of Samsung’s conduct: the Department of Justice has opened an investigation into the manner in which Samsung has used—or misused—its declared-essential patents, as has the European Commission.

As noted by Apple, the European Commission is looking into Samsung's alleged abuse of so-called FRAND patents, with the antitrust regulation body's investigation having started in January. In addition, South Korea's Fair Trade Commission is also probing the company's use of declared-essential patents, a move seen as "courageous" as Samsung has substantial clout in its home country.

Apple mentioned the DoJ investigation in its ITC filing in defense of Samsung's request for an import ban against a number of products, specifically the iPhone, iPad and iPod.



Alongside Apple's filing, Samsung also entered a public interest statement arguing that because Apple refused the a FRAND licensing offer of 2.4 percent, the company's products should be banned. According to Mueller, 2.4 percent is not an inconsequential number as Samsung owns a huge share of UMTS-essential patents.

"At first sight, 2.4% may look like a small amount, but if one extrapolates the figure based on Samsung's share of UMTS-essential patents, it becomes clear that no one could make any money selling wireless devices if every SEP holder made similar demands," Mueller said.

It was reported on Wednesday that an initial determination by ITC Judge Thomas Pender found Samsung in violation of three Apple utility patents and one design patent. The decision, which stems from Apple complaint dating back to July 2011, may result in an import ban of infringing Samsung products if the six-member Commission concurs with the Judge Pender's assessment.