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13-07-15 Samsung Opposition Brief to Apple's Request for Stay of ITC Exclusion Order

13-07-15 Samsung Opposition Brief to Apple's Request for Stay of ITC Exclusion Order

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Published by Florian Mueller
July 15, 2013 brief by Samsung in opposition to Apple's motion for a stay of ITC exclusion order
July 15, 2013 brief by Samsung in opposition to Apple's motion for a stay of ITC exclusion order

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Categories:Types, Business/Law
Published by: Florian Mueller on Jul 17, 2013
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07/24/2013

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UNITED STATES INTERNATIONAL TRADE COMMISSIONWashington, D.C.In the Matter of CERTAIN ELECTRONIC DEVICES,INCLUDING WIRELESSCOMMUNICATION DEVICES,PORTABLE MUSIC AND DATAPROCESSING DEVICES, AND TABLETCOMPUTERSInvestigation No. 337-TA-794SAMSUNG
’S OPPOSITION TO APPLE’S MOTION
FOR STAY OF REMEDIAL ORDERS PENDING APPEAL
 
2
INTRODUCTION
While candidly recognizing that its request for a stay of the Commission’s orders is
without precedent, Apple nevertheless claims entitlement to a stay even though it can avoid an
exclusion order by agreeing to license Samsung’s patents at a rate far below a rate Apple
conceded to be fair, reasonable and non-discriminatory.
There is no basis for granting Apple’s
request. Each
of Apple’s purported justifications w
as previously raised, fully considered, andrejected by the Commission. As a result, Apple cannot establish that any of the four prongs of 
the Commission’s test support a stay.
 First, Apple fails to establish a likelihood of success on appeal or the existence of admittedly difficult legal questions raised by
the Commission’s Opinion.
 
Apple’s
claims of legaland factual error 
in the Commission’s finding of a violation
are typical of its usual line of rhetoric. They do not present unique or novel questions of law, but, rather, attempt to traverseyet again issues such as claim construction, infringement, invalidity, domestic industry and patent exhaustion.
Indeed, the Commission fully considered and rejected each of Apple’s
arguments based on long-standing precedent.
Apple’s claim that the Federal Circuit is likely to vacate the Commission’s remedial
orders because they are contrary to the public interest fares no better. The Commission has broad discretion in determining the form and scope of its remedial orders and the Federal Circuitwill only disrupt that determination if the orders are shown to be arbitrary, capricious, an abuseof discretion, or not in accordance with law. Far from meeting this standard, Apple merelyrepeats arguments the Commission previously rejected on multiple bases in determining thatSamsung was entitled to a r 
emedy for Apple’s infringement.
 Second, Apple fails to show that it will be irreparably harmed absent a stay. TheCommission has previously found that the ability to license the infringed patent(s) weighs
 
3
against a finding of irreparable harm. As set forth in the Commission’s Opinion, the undisputed
facts establish that
Apple has refused to license Samsung’s patents on FRAND terms
. Inaddition, Apple cannot show that the exclusion of two legacy devices nearing the end of their life
cycles would cause such “certain and great” harm to warrant a stay.
 Third, Samsung and its many licensees, who negotiated in good faith and obtained
licenses to the ‘348 patent, would be harmed i
f the Commission grants a stay. Samsung
demonstrated during the investigation that Apple’s products infringe the ‘348 patent.
A stay pending appeal would prejudice Samsung by depriving it of the relief to which it is statutorilyentitled under section 337
for Apple’s unfair trade practices and refusal to pay a FRAND royaltyfor using Samsung’s patents
.Fourth, the public interest favors protecting intellectual property rights. While Appledoes not dispute this fact, it nonetheless contends that U.S. businesses, patent policy, consumers,and innovation would be harmed absent a stay. Again, each of these contentions was evaluated by the Commission prior to issuing its Final Determination, and, as such, cannot form the basisfor staying the remedial orders pending appeal.
ARGUMENTI.
 
LEGAL STANDARD
As Apple correctly notes, the Commission has not previously stayed the enforcement of one of its remedial orders. (Apple Mot. at 6). While the Commission has the authority to staythe effective date of its orders,
the Commission has stated that such stays are “unprecedented”and “extraordinary.”
See Certain Lens-Fitted Film Packages
, Inv. No. 337-TA-
406, Comm’n
Op. at 15-
16 (June 28, 1999) (“
 Lens-Fitted Film Packages
”);
Certain EPROM, EEPROM, Flash

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