On August 9, 2013, the International Trade Commission (the “ITC”) issued an exclusion order prohibiting certain Samsung smartphones from being imported into the United States based on a finding that the phones infringed upon two Apple patents. The first of these patents, US Patent No. 7,479,949 (“Audio I/O headset plug and plug detection circuitry”), relates to interpreting gestures that are made on a touch screen of a mobile device. The second patent, US Patent No.  7,912,501 (“Touch screen device, method, and graphical user interface for determining commands by applying heuristics”), relates to a technology that determines whether a plug that is inserted into the headphone jack also carries a microphone signal. Samsung was found to infringe claims 1, 4-6, 10, and 170-20 of the ‘949 patent, and claims 1-4, and 8 of the ‘501 patent.

Continuum SCH-1400

It is not clear from the order which of Samsung’s products will be impacted by this exclusion order. The ITC did stated that the Galaxy S Continuum SCH-1400 and the Transform SPH-M920 were found to infringe the microphone jack patent. As a result, it is clear that these products will no longer be imported into the country once the order becomes enforceable. However, both of these are 2010 models that are no longer widely sold. Apple can request that the order cover newer models that were released after this ITC action was initiated in 2011. However, to be covered by this exclusion order, the newer models must use the same technology to interpret gestures on the touch screen and to identify microphone enabled headphone plugs as these older 2010 models.

The exclusion order will not be enforce for sixty days, which allows the White House time to determine whether it will refuse to follow the ITC’s decision. While a White House veto of an ITC exclusion order is quite rare, the White House vetoed an exclusion order against Apple just last week. In that case, Samsung had convinced the ITC that Apple’s iPhone 4 and iPad 2 3G models infringed on Samsung’s patent covering CDMA communications. The White House vetoed that exclusion order because the Samsung patent in question covered basic cell phone technology that was required under the CDMA standard, and Samsung had previously agreed to license the patent on fair, reasonable, and non-discriminatory (“FRAND”) terms. Because Samsung refused to license the patent to Apple unless Apple licensed  its patent’s to Samsung, the White House felt that Samsung was not living up to its FRAND licensing agreement. In this case, Apple’s patents are not part of a telecommunication standard, so it is unlikely that the White House will veto the current exclusionary order–at least not under the same logic it used to veto the order against Apple.

D618678Importantly for Samsung, the ITC found that the Samsung devices did not infringe two of Apple’s design patents, namely D618,678 and D558,757. These were not the same design patents that Samsung was found to infringe in the California civil lawsuit which resulted in a billion dollar verdict against Samsung. Nonetheless, Samsung is no doubt relieved that these two design patents were not given broad enough scope to cover Samsung’s own designs.