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How one ITC commissioner's dissent opinion cleared the way for veto of Apple product ban

For those of you that have an interest in patent law or an interest in the ITC's ruling in the Apple-Samsung case, which President Barack Obama just vetoed, then you should check out this piece from Philip Elmer-DeWitt. In the piece, Elmer-Dewitt explains how the ITC's original ruling forced the first presidential veto in a quarter century thanks to the dissent of Dean Pinkert, one of the six ITC commissioners.

Most notably, Pinkert said that Samsung had failed to make a reasonable FRAND patent offer to Apple because the offer it did make came with strings attached... strings it knew Apple could not agree with. Specifically, Samsung wanted Apple to license non-essential iPhone patents to the company in return for its FRAND patents. This made it appear Apple was being unreasonable, thus incurring the ITC's original ban on some of its products.

This led Pinkert to write in his dissent that "it is neither fair nor non-discriminatory for the holder of the FRAND-encumbered patent to require licenses to non-FRAND-encumbered patents as a condition for licensing its patent." Elmer-Dewitt theorizes that this set the stage for something the Obama administration, and the ITC itself, wanted: a strong sign via a presidential veto that signaled the United States was serious about putting an end to unreasonable patent lawsuits.

Whether or not the presidential veto will have a lasting effect on patent lawsuits in the United States remains to be seen, however many in the industry believe it will jump-start much-needed patent reform in the country.

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