Samsung bid to overturn US ban fails, some devices could be taken off shelves

Some older Samsung Electronics Co smartphones and tablets could be taken off store shelves in the United States after the U.S. Trade Representative opted not to reverse a ban ordered because the devices infringe Apple Inc patents.

The decision is the latest step in a patent battle across several countries as Apple and Samsung vie for market share in the lucrative mobile industry. Samsung and Apple are the No. 1 and No. 2 smartphone makers globally, respectively.

Neither the U.S. International Trade Commission (ITC), which made the patent ruling, nor the U.S. Customs and Border Protection, which would enforce the ban, has spelled out which of Samsung's many devices will be affected.

The ITC said on August 9 that some smartphone and tablet models made by South Korea's Samsung infringed on Apple patents, and banned their importation or sale.

(Also see: ITC judge says Samsung infringes key part of Apple patent)

U.S. Trade Representative Michael Froman had 60 days to overturn the ban, as he did in a recent case where Apple was found to have infringed on a Samsung patent, but decided not to.

"After carefully weighing policy considerations, including the impact on consumers and competition, advice from agencies, and information from interested parties, I have decided to allow the commission's determination," Froman said in a statement.

A Samsung spokesperson said: "We are disappointed by the US Trade Representative's decision to allow the exclusion order issued by the US International Trade Commission. It will serve only to reduce competition and limit choice for the American consumer."

Apple filed a complaint in mid-2011, accusing Samsung of infringing its patents in making a wide range of smartphones and tablets.

The ITC ruled that the Samsung devices infringed on portions of two Apple patents on digital mobile devices, related to the detection of headphone jacks and the operation of touchscreens.

Samsung has said its newer models incorporate features that work around disputed technology, and that those changes have been approved by the ITC.

When the ITC issues exclusion orders, they generally do not have model numbers of devices but are broadly written, said Jamie Underwood, an ITC patent expert with the law firm Alston & Bird, LLP.

Both companies have likely been lobbying aggressively, with Apple pushing for a larger number of Samsung models to be banned and Samsung arguing for fewer, she said.

"It is common to have differences over what is covered by an exclusion order," she said.

Implementation of the ban could also be hampered by the federal government shutdown, now in its eighth day, although most customs and border protection personnel remain on the job.

In August, the USTR overturned a proposed ban on some older-model Apple iPhones and iPads which had been found to infringe Samsung patents. Patents involved were standard essential patents, while the patents covered by Tuesday's decision were not.

(Also see: Obama administration overturns US import ban on some iPhones, iPads)

Standard essential patents are central to the products at issue and are supposed to be licensed broadly and inexpensively. U.S. antitrust authorities have argued that infringing on them should trigger requirements for license payments but not import or sales bans.

Calls to Customs seeking comment were not immediately returned. Apple declined comment for this story.

© Thomson Reuters 2013