Sunday, August 04, 2013

Is an ESSENTIAL Patent Worth Less Than a Frivolous Patent? Obama Administration Overturns ITC Import Ban of Apple Products Violating Foreign Patents

When is a patent worth MORE
and when is a patent worth LESS?

Well, if you follow the patent wars closely, you find that ESSENTIAL patents, i.e. real inventions that are essential to technology are, surprisingly, worth LESS


frivolous patents of questionable authenticity are, again surprisingly, worth MORE.

What other conclusion can be drawn from the Obama administration

overturning an ITC import ban of certain Apple products for patent violations, a decision based on the argument that the patents in question are ESSENTIAL to technology,

while leaving intact a billion-dollar judgment in California -- in favor of Apple -- based on a frivolous NON-ESSENTIAL "bounce back, rubber-band" patent, obvious as it was, and arguably stolen as it was, from Atari's PONG anyway.

Beyond that elementary patent distinction, we have a divided opinion on this executive patent action of the Obama administration.

We have been writing for quite some time now at LawPundit about the absurdity of permitting the ITC, a non-judicial agency, to issue import bans based on their interpretation of patent infringement, since we regard the interpretation of the validity and infringement of patents to be an area ONLY within the jurisdiction of courts of the U.S. judiciary. See Constitutional Law: Non Article III Courts Encroaching Upon Essential Attributes of Judicial Power Contrary to U.S. Supreme Court Precedents : ITC Again Plays Judge and Jury on Patents.

The current state of affairs was thus predictable, given the increasing number of import bans issued by the ITC. One ban was inevitably bound not to hit foreign industry, but rather to have a strong impact on a domestic company.

But we find clearly that this was the WRONG case for the executive branch to clamp down on the ITC and to say that enough is enough.

They should have done that long ago when the ITC started to meddle in the patent field.

As it is, this whole thing again smacks not of LAW, but rather of government by the home field advantage, much as the woeful Apple patent cases in their own back yard in Cupertino. A travesty of law and justice.

The above cited Financial Times FT article by Richard Waters on Obama overturns Apple import ban quotes lawyer Susan Kohn Ross, who reportedly stated:
"It could be viewed as the US favouring US companies. Frankly, every other country does it, so why shouldn’t the US?"
So, there you have it, "economic trade protectionism" using the "home field advantage" under the guise of patent law.

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