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Senators allude support for Presidential veto of imminent ITC iPhone and iPad ban

Michael Froman was sworn in as United States Trade Representative by Supreme Court Justice Elena Kagan in June. | Source: USTR

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Ahead of a U.S. International Trade Commission ban of older Apple iPhone and iPad models, a bipartisan cadre of senators has sent a cautionary letter to Trade Representative Michael Froman, who is responsible for the Presidential review of the ITC order.

As noted by FOSS Patents' Florian Mueller, the letter doesn't take a stand on the merits of the ITC case, but it does ask U.S. Trade Representative Michael Froman to carefully consider how companies use FRAND patents weapons in anticompetitive litigation.

The letter is dated July 30 and was signed by Sen. Amy Klobuchar (D.-Minn.), Sen. Mike Lee (R.-Utah), Sen. Barbara Boxer (D.-Calif.), and Sen. Jim Risch (R.-Idaho). Three of the four senators who signed Tuesday's letter also signed a similar letter to the ITC in May regarding the Samsung and Apple case.

The ITC ban, which found certain older models of Apple's iPhone and iPad to have infringed on declared standard-essential Samsung patents, will go into effect on Aug. 5 unless a Presidential veto nixes the order.

Due to their nature, pledged standard-essential patents (SEPs) are meant to be licensed under fair, reasonable and non-discriminatory (FRAND) rates. Samsung's use of its 3G cellular technology SEPs against Apple has been a bone of contention, and Froman's decision to act, or to do nothing, could set an undesirable precedent for future litigation.

As explained by the senators:

Competition and consumers benefit tremendously from the creation of technology standards that promote interoperability, lower costs, and expand consumer choice. Standards are crucial to ensuring that consumers have access to a competitive market of compatible products. The standards setting process depends on a commitment from companies contributing patents to license those patents to all parties implementing the standard on fair, reasonable, and non-discriminatory (FRAND) terms. If companies implementing standards cannot rely on FRAND commitments, they will be less likely to participate in standard setting, which will drive up costs for consumers and reduce the pace of innovation.

Mueller said the fact that the public letter was written so close to the 60-day Presidential veto period is an "unmistakable expression of concern" regarding the USTR's decision. The correspondence is also indirectly supporting Apple, which is pushing for the veto.