8/3. Michael Froman, head of the Office of the U.S. Trade Representative (OUSTR), sent at letter [4 pages in PDF] to Irving Williamson, Chairman of the U.S. International Trade Commission (USITC), that states disapproval of the June 4, 2013 ruling of the USITC barring importation of certain Apple mobile devices that infringe Samsung patents.

On June 4 the USITC issued a Notice of the Commission's Final Determination Finding a Violation of Section 337 [4 pages in PDF] in its proceeding on the complaint of Samsung against Apple regarding the importation of certain electronic devices alleged to infringe Samsung patents.

The USITC found Apple in violation of Section 337, which is codified at 19 U.S.C. § 1337, as to some but not all of the patents cited in the complaint. The USITC also issued a limited exclusion order that prohibits Apple from importing certain wireless communication devices, portable music and data processing devices, and tablet computers. That is, the exclusion order covers certain older AT&T models -- iPhone 4, iPhone 3GS, iPad 3G, and iPad2 3G.

See, story titled "USITC Enjoins Importation of Certain Older iPhones and iPads" in TLJ Daily E-Mail Alert No. 2,570, June 4, 2013. The USITC proceeding is Inv. No. 337-TA-794.

Section 337 makes unlawful the following: "The importation into the United States, the sale for importation, or the sale within the United States after importation by the owner, importer, or consignee, of articles that ... infringe a valid and enforceable United States patent or a valid and enforceable United States copyright ... or ... are made, produced, processed, or mined under, or by means of, a process covered by the claims of a valid and enforceable United States patent".

The primary remedy available under Section 337 is an exclusion order.

Summary of the USTR/Froman Letter. Froman's letter is four pages long, but avoids any clear legal analysis, or application of law to the facts. It is of only limited precedential value to Apple and Samsung, the USITC, or parties to potential future patent disputes.

This letter approaches clarity in one respect. It provides an outcome. It states that "I have decided to disapprove the USITC's determination to issue an exclusion order and cease and desist order in this investigation." However, the letter fails to state whether the proceeding is concluded with this letter, or whether the letter is in the nature of a reversal and remand for further proceedings consistent with the letter.

Froman (at right) does discuss the importance of standards developing organizations (SDOs), and commitments to license standards essential patents (SEPs) on fair, reasonable and non-discriminatory (FRAND) terms, and the problems of patent hold ups and reverse hold ups.

He also references, and states his approval of, the January 8, 2013 joint policy statement [10 pages in PDF] of the Department of Justice's (DOJ) Antitrust Division and the U.S. Patent and Trademark Office (USPTO) titled "Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments".

That policy statement addresses "whether injunctive relief in judicial proceedings or exclusion orders in investigations under section 337 of the Tariff Act of 1930 are properly issued when a patent holder seeking such a remedy asserts standards-essential patents that are encumbered by a RAND or FRAND licensing commitment." (Footnotes omitted.)

That policy statement argues that an exclusion order or injunction for a FRAND encumbered SEP may be inconsistent with the public interest. However, there are exceptions. For example, an exclusion order or injunction may be appropriate where the putative licensee has refused to take a FRAND license.

See also, story titled "DOJ and USPTO Issue Statement on Injunctive Relief for Infringement of SEPs Subject to FRAND Commitments" in TLJ Daily E-Mail Alert No. 2,506, January 9, 2013.

However, Froman's letter makes no attempt to apply the principles of that policy statement to the facts of the Samsung Apple proceeding. He recites no factual findings of USITC. He makes no new or de novo factual findings of his own.

He does not, for example, cite any portion of the June 4 USITC determination for the proposition that Samsung refused to license SEPs on FRAND terms. Nor does he make any such finding himself.

While such findings are not in the USITC's determination, or in Froman's letter, some outside commenters have asserted that Samsung refused to license SEPs on FRAND terms, and that this should serve as the basis for refusing Samsung an exclusion order.

The USITC's order merely stated that the USITC sought and received comments on "FRAND related topics", that "Apple failed to prove an affirmative defense based on Samsung's FRAND declarations", and that the USITC "has determined that Samsung's FRAND declarations do not preclude" the issuance of an exclusion order and a cease and desist order. The USITC order did not address SEPs or hold ups.

The penultimate paragraph of Froman's letter contains vaguely worded instructions to the USITC to make "comprehensive" findings of fact in "any future cases involving SEPs that are subject to voluntary FRAND commitments", including regarding the "presence or absence of a patent hold-up or reverse hold-up".

Froman's letter lacks clarity as to whether his letter is intended to conclude the proceeding with finality, or whether it is in the nature of a remand to the USITC for further proceedings. That is, might the USITC issue a second determination, that contains the directed findings of fact, and applies the principles stated in the DOJ/USPTO policy statement to those facts, and once again conclude that exclusion is in the public interest, and issue a second exclusion order?

Froman, whose letter reflects a limited grasp of trial and appellate procedure, did not say.

Presidential Review of Section 337 Exclusion Orders. Section 1337 provides for judicial review, by the U.S. Court of Appeals, of final orders of the USITC, in accordance with 5 U.S.C. § 706, the Administrative Procedure Act (APA). Such judicial review is an option available to all losing parties in Section 337 proceedings.

However, the just issued letter does not constitute the exercise of judicial review authority.

In addition, subsection 1337(j)(2) gives the President the authority to overturn a USITC determination. It provides that "If, before the close of the 60-day period beginning on the day after the day on which he receives a copy of such determination, the President, for policy reasons, disapproves such determination and notifies the Commission of his disapproval, then, effective on the date of such notice, such determination and the action taken ... shall have no force or effect."

Moreover, while the statute places review authority in the President, the just issued determination is an action taken by Michael Froman. He is the recently confirmed U.S. Trade Representative (USTR), an office situated in the Executive Office of the President (EOP).

President Obama did not sign this determination. Nor has he released an executive order, proclamation, or other written instrument that evidences his invocation of authority under Section 1337(j)(2).

Froman merely asserted that "This authority has been assigned to" the USTR.

Lack of Judicial Independence. The USITC is not an Article III court. However, proceedings under Section 1337 are judicial in nature. The mere existence of Section 1337(j)(2) flies in the face of one of the most fundamental principles of judicial process -- judicial independence -- which requires judicial decision makers to be independent from the parties and outside political pressure or meddling.

Moreover, the purpose for which Section 1337(j)(2) has been invoked suggests the presence of procedural unfairness.

It will not likely go unnoticed that the OUSTR issued this letter for the benefit of a U.S. company, and to the detriment of a foreign company. This action may therefore harm the efforts of U.S. companies, trade negotiators and diplomats when they seek fair and impartial treatment for U.S. companies in foreign courts and before foreign government agencies.

On the other hand, Apple is allied with foreign manufacturers, while Samsung is allied with Google and other U.S. companies.

Reaction. Ed Black, head of the Computer and Communications Industry Association (CCIA), stated in a release that "The Administration’s unprecedented decision to veto an ITC ``Section 337´´ import ban against Apple for infringing Samsung's intellectual property is a disruptive and potentially dangerous development that calls into question the fairness of our trading regime and could undermine the way US companies are treated globally."

He added that "If Samsung is not afforded equal treatment by the USTR, this seemingly arbitrary and non-appealable decision on behalf of a giant American competitor threatens to undermine our relationships with our trading partners and international respect for national patent systems."

He also stated that the CCIA is "troubled by the explosion of patent cases and exclusion orders at the ITC", but that "Adjudication by USTR fiat, however, is unacceptable and invites other countries to do the same."

In contrast, Tim Molino of the Business Software Alliance (BSA) stated in a release that "Ambassador Froman made the right decision in this case ... Market exclusion orders might be appropriate remedies in some cases, but generally not when it comes to FRAND-encumbered standard-essential patents."

Michael Froman. Mike Froman started work at the USTR six weeks ago, after the USITC had issued its determination.

Before that he worked in the EOP as Deputy National Security Advisor for International Economic Affairs. Before joining the Obama administration, he worked at Citgroup. He also worked in the Department of the Treasury during the Clinton administration. And, he was a law school classmate of President Obama.

However, nothing in his record reflects either judicial experience, or expertise in patent law.

See also, stories titled "President Obama Picks Mike Froman to be USTR" in TLJ Daily E-Mail Alert No. 2,557, May 6, 2013. and "USTR Nominee Froman Mired in Ugland House Controversy" in TLJ Daily E-Mail Alert No. 2,570, June 4, 2013.

8/1. The Senate confirmed Raymond Chen to be a Judge of the U.S. Court of Appeals (FedCir) by a vote of 97-0. See, Roll Call No. 198.

President Obama nominated Chen (at right) on February 7, 2013. See, story titled "Obama Nominates Raymond Chen for Federal Circuit" in TLJ Daily E-Mail Alert No. 2,522, February 8, 2013.

The Senate Judiciary Committee (SJC) held a hearing on April 24, 2013. See, SJC web page with hyperlink to its archived webcast. See also, Chen's responses to the SJC's questionnaire, and his responses to written questions from SJC members.

The SJC approved his nomination by unanimous voice vote on May 16, 2013. See, story titled "Senate Judiciary Committee Approves Chen for Federal Circuit" in TLJ Daily E-Mail Alert No. 2.562, May 15, 2013.

He was a long time employee of the U.S. Patent and Trademark Office (USPTO). He was Deputy General Counsel for Intellectual Property Law and Solicitor for the USPTO from 2008 through 2013. He was the USPTO's Associate Solicitor for ten years before that. He argued In Re Bilski on behalf of the USPTO before the Federal Circuit.

He also worked as a staff attorney for the Federal Circuit before joining the USPTO. And, he worked briefly for the intellectual property oriented law firm of Knobbe Martens after law school.

8/1. President Obama nominated Michelle Friedland to be a Judge of the U.S. Court of Appeals (9thCir). See, White House news office release and release. She works in the San Francisco office of the law firm of Munger Tolles & Olson.

Her law firm web page states that she "focuses primarily on antitrust litigation, appellate matters, and constitutional and academic affairs litigation for higher education institutions".

She represents drug companies in matters involving the application of antitrust law to their patent related practices.

For example, she represented Solvay Pharmaceuticals before the Supreme Court in FTC v. Activis. The Supreme Court held in its June 17, 2013 opinion [43 pages in PDF] that a reverse payment, also known as pay for delay, settlement in a pharmaceutical patent infringement case can violate antitrust law. Activis and Solvay argued that such settlements are lawful.

See, stories titled "Supreme Court Holds Patent Reverse Payments Can Violate Antitrust Law", "Reaction to the Actavis Opinion" and "Commentary: Potential Impact of the Actavis Opinion on Other FTC and DOJ Antitrust Actions" in TLJ Daily E-Mail Alert No. 2,580, June 19, 2013.

She has also defended Abbott Laboratories against antitrust claims.

Federal Election Commission (FEC) records disclose that she contributed to the Obama campaigns and the Democratic National Committee (DNC) during the 2008 and 2012 election cycles.

7/25. President Obama nominated Vince Chhabria to be a Judge of the U.S. District Court for the Northern District of California. See, White House news office release and release.

He is the Deputy City Attorney for Government Litigation and Co-Chief of Appellate Litigation in the San Francisco City Attorney's Office.

The Northern District of California hears a large number of patent and other technology related cases. However, Chhabria's work for the city of San Francisco does not involve technology related areas of law. In contrast, he has defended numerous of San Francisco's social experiments that are sure to rattle Senate conservatives.

Before he went to work for the city, he worked for the law firm of Covington & Burling. Before that, he clerked for Supreme Court Justice Stephen Breyer. Before that, he worked briefly for the law firm of Keker & Van Nest in 2001. And before that, there was a 9th Circuit clerkship, a District Court clerkship, and law school.

He is only 39 years old.

Federal Election Commission (FEC) records disclose that he contributed to the election campaigns of former Rep. Lynn Woolsey (D-CA), who until her retirement at the end of the 112th Congress was one of the most liberal members of the Congress.

8/1. President Obama nominated Suzanne Spaulding to be Under Secretary of the Department of Homeland Security (DHS), a position previously held by Rand Beers. See, White House news office release and release. She has been the DHS's Deputy Under Secretary for National Protection Programs since 2011. She has worked in numerous Washington DC government positions for the last 30 years on various defense, intelligence and cyber security issues. In addition, she worked for Bingham Consulting Group from 2006 to 2011.

8/1. President Obama nominated Gil Kerlikowske to be Commissioner of Customs at the Department of Homeland Security (DHS). See, White House news office release and release.

8/1. President Obama nominated Stevan Bunnell to be General Counsel of the Department of Homeland Security (DHS). See, White House news office release and release. He is the managing partner of the Washington DC office of the law firm of O'Melveny & Myers. He works in its White Collar Defense and Corporate Investigations Practice. Before entering private practice, he worked in numerous positions at the Department of Justice (DOJ) and its U.S. Attorneys Office for the District of Columbia.

The House will not meet from August 5 through September 6. It will return from its August recess on Monday, September 9. See, House calendar for the 113th Congress, 1st Session.

The Senate will not meet from August 5 through September 6. It will return from its August recess on Monday, September 9. See, Senate calendar for the 113th Congress, 1st Session.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Microsoft v. USITC, App. Ct. No. 12-1445, an appeal from the U.S. International Trade Commission (USITC) in a Section 337 proceeding involving mobile device patents. Panel C. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Motorola Mobility v. USITC, App. Ct. No. 12-1535, an appeal from the U.S. International Trade Commission (USITC) in a Section 337 proceeding involving mobile device patents. Panel C. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in nCUBE v. SeaChange International, App. Ct. No. 13-1066, an appeal from the U.S. District Court. Panel C. Location: Courtroom 402, 717 Madison Place, NW.

10:00 - 11:30 PM. The American Bar Association's (ABA) Section of International Law will host a teleconferenced panel discussion titled "Raising Venture Capital in the United States". The focus will be on India based start ups. The speakers will be Andrew Hazen (Ruskin Moscou & Faltischek), Anirudh Suri (The India Internet Group), Siddharth Raja (Samvad Partners), and Tom Thomas (Pillsbury Winthrop Shaw Pittman). Free. No CLE credits. See, notice.

Deadline to submit reply comments to the Federal Communications Commission's (FCC) Media Bureau (MB) in response to its Public Notice (DA 13-1353) that seeks public comment on a report [18 pages in PDF] written for the Minority Media and Telecommunications Council (MMTC) titled "The Impact of Cross Media Ownership on Minority/Women Owned Broadcast Stations". See, story titled "FCC Again Seeks Comments on Media Ownership" in TLJ Daily E-Mail Alert No. 2,576, June 12, 2013.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Panduit Corp. v. ADC Telecommunications, Inc., App. Ct. No. 12-1435, an appeal from the USPTO. Panel D. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Panduit Corp. v. Rea, App. Ct. No. 12-1437. Panel D. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM - 5:00 PM. The U.S.-China Economic and Security Review Commission will hold one in a series of meetings to review and edit its 2013 annual report to the Congress. Open to the public. See, notice in the Federal Register, Vol. 78, No. 151, August 6, 2013, at Pages 47829-47830. Location: Room 231, Hall of the States, 444 North Capitol St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Public Notice (PN) regarding its proposals to conduct three limited "real-world trials to obtain data" regarding transitioning public switched telephone network technology to all internet protocol networks. This PN is DA 13-1016 in GN Docket No. 13-5. The FCC released it on May 10, 2013. See, notice in the Federal Register, Vol. 78, No. 101, May 24, 2013, at Pages 31542-31548, and FCC's May 24 Public Notice. See also, story titled "FCC Requests Comments on Possible IP Transition Trials" in TLJ Daily E-Mail Alert No. 2,561, May 14, 2013.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Leviton Manufacturing v. USITC, App. Ct. No. 12-1483, an appeal from the U.S. International Trade Commission (USITC). Panel E. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Fujian Hongan Electric v. USITC, App. Ct. No. 12-1493, an appeal from the U.S. International Trade Commission (USITC). Panel E. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Intellect Wireless v. HTC, App. Ct. No. 12-1658, an appeal from the U.S. District Court. Panel E. Location: Courtroom 201, 717 Madison Place, NW.

1:00 - 3:15 PM. The DC Bar Association will host an event titled "Cloud Computing Basics". The speakers will be Henry Classen (Computer Sciences Corporation) and Philip Porter (Hogan Lovells). The price to attend ranges from $89 to $129. CLE credits. For more information, call 202-626-3488. The DC Bar has a history of barring reporters from its events. See, notice. Location: DC Bar Conference Center, 1101 K St., NW.

Extended deadline to submit comments to the Federal Trade Commission (FTC) in response to its notice of proposed rulemaking regarding its Telemarketing Sales Rule (TSR). See, original notice in the Federal Register, Vol. 78, No. 131, July 9, 2013, at Pages 41199-41225, and FTC release extending deadline to August 8.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Apple v. Samsung Electronics, App. Ct. No. 2013-1129, a appeal from the U.S. District Court (NDCal) in a patent and trade dress case involving mobile device technology. This pertains to the District Court's order denying Apple's motion for a permanent injunction. Panel H. See also, stories titled "Apple Files Patent Infringement Complaint Against Samsung" in TLJ Daily E-Mail Alert No. 2,222, April 18, 2011, and "Trial Jury Returns Verdict In Apple v. Samsung" in TLJ Daily E-Mail Alert No. 2,437, August 25, 2012. The District Court case number is 11-CV-01846-LHK. Location: Courtroom 203, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Integrated Technology v. Rudolph Technologies, App. Ct. No. 12-1593, an appeal from the U.S. District Court. Panel F. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Maury Microwave, Inc. v. Focus Microwaves, App. Ct. No. 13-1006, an appeal from the U.S. District Court. Panel F. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Comaper Corporation v. Antec, App. Ct. No. 13-1147, an appeal from the U.S. District Court. Panel F. Location: Courtroom 201, 717 Madison Place, NW.

10:30 AM. The Federal Communications Commission (FCC) will host an event titled "open meeting". The FCC is scheduled to adopt changes to its operating rules for satellite services, rules for unlicensed devices operating in the 57-64 GHz band, and rules regarding interstate inmate phone rates. See, agenda. Location: FCC, Commission Meeting Room, TW-C305, 445 12th St., SW.

12:00 NOON - 1:00 PM. The Heritage Foundation (HF) will host a discussion of the book [Amazon] titled "A Government of Wolves: The Emerging American Police State". This book addresses, among other topics, electronic surveillance. The speakers will include the author, John Whitehead (Rutherford Institute). Free. Open to the public. See, notice. Location: HF, 214 Massachusetts Ave., NE.

The House will not meet the week of August 12 through August 16. It will return from its August recess on Monday, September 9. See, House calendar for the 113th Congress, 1st Session.

The Senate will not meet the week of August 12 through August 16. It will return from its August recess on Monday, September 9. See, Senate calendar for the 113th Congress, 1st Session.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Second Notice of Proposed Rulemaking (2ndNPRM) regarding its "2000 Biennial Regulatory Review Separate Affiliate Requirements of Section 64.1903 of the Commission's Rules". The FCC adopted this NPRM on May 10, 2013 as part of its larger item [127 pages in PDF] that granted forbearance from numerous unnecessary regulatory requirements on phone companies. The FCC released this item on May 17. It is FCC 13-69 in CC Docket No. 00-175. See, notice in the Federal Register, Vol. 78, No. 113, June 12, 2013, at Pages 35191-35195.

No events listed.

8/1. President Obama nominated Karen Dynan to be Assistant Secretary of the Treasury for tax policy.  See, White House news office release and release. She has worked at the Brookings Institution since 2009. Before that, she was a long time employee of the Federal Reserve Board.

8/1. President Obama nominated John Koskinen to be Commissioner of Internal Revenue (IRS) for a term expiring November 12, 2017. See, White House news office release, and statement by President Obama.

8/1. President Obama nominated Peter Kadzik (at left) to be an Assistant Attorney General in charge of the Department of Justice's (DOJ) Office of Legislative Affairs (OLA). See, White House news office release and release. He joined the OLA in April, and is currently the acting head of the OLA. Before that, he worked for the law firm of Dickstein Shapiro for over 30 years.

8/1. President Obama nominated Pamela Hamamoto to be Representative of the United States of America to the Office of the United Nations and Other International Organizations in Geneva, Switzerland. See, White House news office release and release. She is not a career diplomat. She last worked (for Goldman Sachs) in 1999. She did contribute a total of $4,300 to the Obama campaign and the Democratic National Committee (DNC) in recent years. And, she was a school classmate of President Obama at the Punahou School in Hawaii.

7/31. President Obama nominated France Anne Cordova to be Director of the National Science Foundation (NSF) for a term of six years. See, White House news office release. She was President of Perdue University from 2007 through 2012. She was Chancellor of the University of California at Riverside from 2002 through 2007. Her fields are physics and astronomy.

7/31. President Obama nominated Jo Emily Handelsman to be an Associate Director of the Executive Office of the President's (EOP) Office of Science and Technology Policy (OSTP). See, White House news office release. She is a professor at Yale University. Her field is microbiology.

7/25. President Obama nominated Robert Michael Simon to be an Associate Director of the Executive Office of the President's (EOP) Office of Science and Technology Policy (OSTP). See, White House news office release.

7/31. President Obama nominated Sarah Raskin (at left) to be Deputy Secretary of the Treasury. See, White House news office release. She is currently a member of the Board of Governors of the Federal Reserve System.

7/31. President Obama nominated Kenneth Weinstein to be a Member of the Broadcasting Board of Governors for a term expiring August 13, 2014. See, White House news office release and release. This is the Kenneth Weinstein who is the head of the Hudson Institute, and not the Kenneth Wainstein who was Assistant Attorney General in charge of the Department of Justice's (DOJ) National Security Division (NSD), and Homeland Security Advisor to former President Bush.

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