Less than four weeks before an import ban on popular Apple products will take effect, the iPhone maker is asking the International Trade Commission to stay the ban while a court considers an appeal.
In a motion filed Monday with the ITC, Apple said the ban, set for August 5th, will “sweep away an entire segment of Apple’s product offerings,” and also harm its phone carrier partners.
The request is the latest twist in the interminable worldwide legal battle between Apple and Samsung over smart phone patents. In the ITC proceedings, Samsung won a surprise victory in June when the agency found that versions of Apple’s iPad and iPhone infringed on one of the South Korean company’s patents relating to encoding technology.
The finding led the ITC to impose an automatic import ban on the iPhone 4 and iPad 2G and earlier models of those products. According to Apple, which says the iPhone 4 was America’s fourth most popular smartphone in 2012, the ban will wipe out an important market:
If the Orders go into effect, Apple will lose not only sales of its iPhone 4 (GSM) and iPad 2 3G (GSM) products but also the opportunity to gain new smartphone and tablet customers who otherwise would have purchased these entry- level Apple devices.
The ban, handed down on June 4, is subject to a customary 60 day review period by the President of the United States (presidential intervention is very unlikely). And, unlike some other cases where the ITC has found infringement, the agency did not provide Apple with extra time to find a workaround.
In its filing, Apple also warns that the ban will hurt its phone carrier partners who also sell iPhones and iPads (the carrier names are blacked out in the filing but are almost certainly AT&T and T-Mobile):
The products subject to the Commission’s orders have been purchased by [REDACTED]. They remain very popular and are strong sellers for the GSM carriers. As noted above, the GSM carriers will be placed at a competitive disadvantage against their CDMA competitors because the Orders will prevent them from offering these popular, entry-level devices.
In arguing for a stay, Apple says the Federal Circuit Court of Appeals — where Apple has challenged the ITC’s decision — is likely to find the patent invalid. The company adds that, if the appeals court sides with Samsung, the South Korean company can always collect damages in a parallel court case taking place in Delaware.
The current ITC spat has been especially contentious because it involves so-called FRAND patents, which are standard-essential patents that owners are supposed to license to competitors. Apple claims that Samsung is demanding too much for a license while Samsung says it has put a fair offer before Apple.
In the bigger picture, the impending import ban is further evidence of a patent system run amok, and one in which the trade agency has become a place for smartphone competitors to do an end run around the courts in order to harass each other.
You can read the filing for yourself here (I’ve underlined some of the highlights):