|DOJ Closes Its Investigation of
2/7. The Department of Justice's (DOJ) Antitrust
Division announced in a
release that it has closed its investigation into Samsung's assertion against Apple of
rights in standards essential patents (SEPs) subject to fair, reasonable and
non-discriminatory (FRAND) commitments.
The DOJ wrote that it is "closing of its investigation into Samsung Electronics
Co. Ltd.'s use of its portfolio of standards-essential patents that it had committed to
license to industry participants on fair, reasonable, and non-discriminatory terms (SEPs)
to exclude certain Apple, Inc. products from the U.S. market".
It added that its
investigation "focused on Samsung’s attempts to use its SEPs to obtain exclusion
orders" from the U.S. International Trade Commission
(USITC) "relating to certain iPhone and iPad models."
The USITC issued a Section 337 exclusion order in June of 2013 banning
importation of certain Apple devices that infringed certain Samsung patents.
See, story titled "USITC Enjoins Importation of Certain Older iPhones and iPads"
in TLJ Daily E-Mail
Alert No. 2,570, June 4, 2013.
However, the U.S. Trade
Representative, Michael Froman, overturned that exclusion order in August.
The DOJ concluded on February 7 that "As a result of the USTR's action, the Antitrust
Division has determined that no further action is required at this time. The
Antitrust Division is therefore closing its investigation into Samsung’s
conduct, but will continue to monitor further developments in this area."
Various US entities work under sometimes conflicting policy objectives -- promoting
innovation by conferring exclusive rights in inventions, promoting competition and consumer
welfare through application of antitrust law, protecting national security, and protecting
US economic interests from foreign competition.
The U.S. Patent and Trademark Office (USPTO) has
authority to issue patents. Actions for damages for infringement, and for injunctive relief,
lie in the U.S. District Court.
In addition, the USITC has authority to issue exclusion orders to protect
patents rights. Section 337, which is codified at
19 U.S.C. § 1337, provides,
in part, that may issue such orders in the case of "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 registered under
The Federal Trade Commission (FTC) and DOJ both
enforce antitrust laws. They have divided their responsibilities by industry sectors. The
DOJ handles telecommunications. Federal courts have construed the purpose of these statutes
to be protection of competition and consumer welfare.
The DOJ and USPTO issued a
statement [10 pages in PDF] dated January 8, 2013 on the subject of reconciling the
policy goals of patent protection with competition promotion. 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.
Apple is a US company. Samsung is a Korean company. The two compete in the
sale of smart phones. Both hold large smart phone patent portfolios. Both
filed complaints against the other in the District Courts, and with the USITC.
The USITC issued two exclusion orders based upon patent infringement -- one
directed at Apple, and one directed a Samsung.
The President may overturn these exclusion orders within 60 days, pursuant to
19 U.S.C. § 1337(j). As a
practical matter, the President acts upon the recommendation of the USTR, who ordinarily
denies requests to overturn exclusion orders. However, Froman overturned the Apple order,
but not the Samsung order. See, story titled "USTR Froman Disapproves USITC Exclusion
Order in Samsung Apple Proceeding" in
TLJ Daily E-Mail Alert No.
2,587, August 6, 2013, and story titled "USTR Declines
to Overturn USITC's Section 337 Samsung Exclusion Order"
TLJ Daily E-Mail Alert No.
2,611, October 9, 2013.
This pair of actions, in the least, created the appearance of favoritism and
Froman referenced the DOJ/USPTO policy statement regarding SEPS subject to
FRAND commitments. And, the DOJ in its just issued release referenced that
policy statement. However, Froman's August determination made no attempt to
apply the principles of that DOJ/USPTO policy statement to the facts of that
proceeding. He did not base his determination upon a finding that
Samsung asserted SEPs subject to FRAND commitments. Similarly, the DOJ's just
issued release does not apply the policy statement to its just closed review.
The DOJ wrote that "a number of competitive issues arise when holders of SEPs
seek to block their competitors from selling products that implement the SEPs. While
there are certain circumstances where an exclusion order as a remedy for infringement of
such patents could be appropriate, in many cases there is a risk that the patent holder
could use the threat of an exclusion order to obtain licensing terms that are more onerous
than would be justified by the value of the technology itself, effectively exploiting the
market power obtained through the standards-setting process." But, the DOJ release
merely offers this general statement, without reaching any conclusions as to Samsung.
The DOJ added that "readers should not draw overly broad conclusions regarding
how the division is likely in the future to analyze other collaborations or activities,
or transactions involving particular firms. Enforcement decisions are made on a case-by-case
basis, and the analysis and conclusions discussed in this statement do not bind the division
in any future enforcement actions."
This closing thus provides very little in the way of precedent or guidance to
Nor does it provide finality for Apple and Samsung. The European Commission (EC)
is still conducting a parallel and redundant review of the same conduct.
|Alumnia Addresses EC Investigation of
Google's Search Practices
Joaquín Almunia, the European Commission's (EC) VP for Competition Policy"
speech in Brussels,
Belgium in which he discussed the EC's long running investigation of Google's search related
He stated that "I believe that Google's new proposals are capable of addressing
the competition concerns I set out to them. Therefore, from now on we will move forward
towards a decision based on commitments."
The U.S. Federal Trade Commission (FTC) concluded its
own investigation of Google's patent and search practices in January of 2013. It announced
then that it decided "to close the portion of its investigation relating to allegations
that Google unfairly preferences its own content on the Google search results page and
selectively demotes its competitors’ content from those results".
The FTC's search statement noted that complaining entities alleged that
Google "unfairly promoted its own vertical properties through changes in its
search results page" and "manipulated its search algorithms in order to demote
vertical websites that competed against Google’s own vertical properties."
The FTC concluded in 2013 that "the evidence presented at this time does not
support the allegation that Google’s display of its own vertical content at or
near the top of its search results page was a product design change undertaken
without a legitimate business justification. Rather, we conclude that Google’s
display of its own content could plausibly be viewed as an improvement in the
overall quality of Google’s search product. Similarly, we have not found
sufficient evidence that Google manipulates its search algorithms to unfairly
disadvantage vertical websites that compete with Google-owned vertical
properties. Although at points in time various vertical websites have
experienced demotions, we find that this was a consequence of algorithm changes
that also could plausibly be viewed as an improvement in the overall quality of
Google’s search results."
See, story titled "FTC Concludes Its Investigation of Google" in
TLJ Daily E-Mail
Alert No. 2,504, January 7, 2012.
Last week, Alumnia (at
right) explained that "The latest round of negotiations over the last weeks
focused on how Google would ensure that rival specialised search services can
fairly compete with Google's services. Our concern was that, given the
favourable treatment of Google's own services on its page, competitors' results
which are potentially as relevant to the user as Google's own services -- or
even more relevant -- could be significantly less visible or not directly
visible, leading to an undue diversion of internet traffic."
He elaborated that "it is essential that the presentation of rival links is
comparable to that of the Google services", "comparability of presentation of
rival links has to be ensured dynamically over time", and "any commitments must
retain their relevance throughout their lifetime".
He then stated that "Google has finally
accepted to guarantee that whenever it promotes its own specialised search
services on its page, the services of rivals will also be displayed in a
comparable way. In practice, this means that when Google promotes one of its own
specialised search services, there will be three rival services also displayed
prominently on the page, in a way that is clearly visible to users."
Thomas Vinje of Fair Search, a group that
advocates action by antitrust regulators against Google, stated in a
release that this is "worse than doing nothing". He stated that "our
concern is that the proposed commitments lock in discrimination and raise rivals' costs
instead of solving the problem of Google’s anti-competitive practices".
In addition, on February 6, John Simpson of the
Consumer Watchdog, a group that has often criticized Google's business practices, sent a
letter to EC
President Jose Manuel Barroso "to express our deepest concerns". He argued that, "At
a minimum any remedy must insist that Google use an objective, nondiscriminatory mechanism
to rank and display all search results -- including links to Google products."
He asserted that "The heart of the problem is simple. Google has developed a substantial
conflict of interest. It no longer has an incentive to steer users to other sites, but rather
primarily to its own services. It is becoming even more effective at this and has a greater
incentive to engage in manipulation now that it is merging data collected across all its
services. The only way to deal with this conflict is to remove it. Ideally, there needs to
be a separation of Google’s different services and assets. At a minimum any remedy must
insist that Google use an objective, nondiscriminatory mechanism to rank and display all
search results -- including links to Google products."
|Rep. Waxman Introduces Open Internet
2/3. Rep. Henry Waxman (D-CA) and other Democrats
introduced HR 3982 [LOC
| WW],, the "the
Open Internet Preservation Act". This short and simple bill would reinstate the Federal
Communications Commission's (FCC)
Order (R&O) [194 pages in PDF] vacated and remanded by the
U.S. Court of Appeals (DCCir) in its January
14, 2014 opinion in
Verizon v. FCC.
The FCC adopted this R&O on December 21, 2010, and released the text on December
23, 2010. It is FCC 10-201 in GN Docket No. 09-191 and WC Docket No. 07-52. See also,
stories in TLJ Daily E-Mail
Alert No. 2,186, December 22, 2010, and
TLJ Daily E-Mail
Alert No. 2,188, December 24, 2010.
The R&O contains rules that regulate the business practices of broadband internet
access service (BIAS) providers. These rules are also sometimes referred to as open internet
rules or network neutrality rules.
The bill states that this R&O "shall be restored to effect during the period
beginning on the date of the enactment of this Act and ending on the date when the Commission
takes final action in the proceedings remanded to the Commission in that decision."
Rep. Waxman stated in a
release that "Our bill very simply ensures that consumers can continue to access
the content and applications of their choosing online. The FCC can and must quickly exercise
the authorities the D.C. Circuit recognized to reinstate the Open Internet rules. Our bill
makes clear that consumers and innovators will be protected in the interim."
Cathy Sloan of the Computer and Communications
Industry Association (CCIA) stated in a
release that "As the FCC works diligently to craft new safeguards against content
blocking and commercial discrimination that could jeopardize anyone’s open Internet access
in the wake of the Verizon court decision, consumers and online businesses will be pleased
to know that so many leaders in Congress have their back."
Christopher Lewis of the Public Knowledge (PK) stated in a
release that "The decision by the DC Circuit Court left a great deal of uncertainty
for the Internet economy. The bill ensures that consumers and businesses are protected during
this period of uncertainty between the Court's decision and the FCC's action in response to
the court's remand. It is critical that the FCC acts quickly in response to the DC Circuit
Court to protect an open Internet as we have always known it. They have clear authority to act
and this bill provides protection for consumers while they deliberate."
This bill was referred to the
House Commerce Committee (HCC).
The bill has no Republican cosponsors.
Since 2005, when serious consideration of this issue began in the Congress, proponents of
open internet legislation have lacked sufficient votes for passage in the full
House, the HCC, or its Subcommittee on Communications and Technology. Rep.
Waxman has introduced this bill for purposes other than enactment into law.
Sen. Ed Markey (D-MA) introduced
the companion bill in the Senate, S 1981
WW]. That bill has
no Republican cosponsors. It was referred to the
Senate Commerce Committee (SCC).
|This issue contains the following items:
• DOJ Closes Its Investigation of Samsung
• Alumnia Addresses EC Investigation of Google's Search Practices
• Rep. Waxman Introduces Open Internet Preservation Act
• Rep. Waxman to Retire
New items are highlighted in
|Monday, February 10
The House will meet at 12:00 NOON for morning
hour, and at 2:00 PM for legislative business. The House will consider
non-technology related items under suspension of the rules. Votes will be
postponed until 6:30 PM. See, Rep. Cantor's
The Senate will meet at 2:00 PM.
5:00 PM. The
House Intelligence Committee (HIC) will hold an executive business meeting. See,
Location: Room HVC-304, Capitol Visitor Center.
|Tuesday, February 11
The House will meet at 10:00 AM for morning
hour, and at 12:00 NOON for legislative business. See, Rep. Cantor's
10:00 AM. The
House Financial Services
Committee will hold a hearing titled "Monetary Policy and the State of
the Economy". The witness will be Janet
Yellen (Chairman of the Federal
Reserve Board), John Taylor (Stanford University), Mark Calabria (Cato
Institute), Abby McCloskey (American Enterprise Institute), Donald Kohn
(Brookings Institution). See,
notice. Location: Room 2128, Rayburn Building.
10:30 AM. The
House Commerce Committee's (HCC)
Subcommittee on Communications and Technology will hold a hearing titled "Lessons
Learned from the Broadband Stimulus". See,
Location: Room 2123, Rayburn Building.
12:15 - 5:00 PM. The New America
Foundation (NAF) will host a panel discussion titled "Cryptocurrencies:
The New Coin of the Realm?" Free. Open to the public. Lunch will be
Location: NAF, Suite 400, 1899 L St., NW.
1:00 PM. The
House Small Business Committee (HSBC)
will hold a hearing titled "Building on the Wireless Revolution: Opportunities
and Barriers for Small Firms". The witnesses will be Michael Feldman (BigBelly
Solar), Brian Marshall (Missouri Farm Bureau Federation and National Farm Bureau
Federation), Leo McCloskey (Intelligent Transportation Society of America), and
Darrell West (Brookings Institution). See,
Location: Room 2360, Rayburn building.
2:30 PM. The Senate
Intelligence Committee (SIC) will hold a closed hearing on undisclosed matters. See,
notice. Location: Room 219, Hart Building.
3:00 - 5:00 PM. The
Brookings Institution (BI) will host an
event titled "TPP and RCEP: Competing or Complementary Models of Economic
Integration?". The US is a party to Trans Pacific Partnership (TPP)
negotiations, but not Regional Comprehensive Economic Partnership (RCEP)
negotiations. The speakers will include Kenichiro Sasae (Japan's ambassador to
the US). Japan is a party to both TPP and RCEP. See,
notice. Location: BI, 1775 Massachusetts Ave., NW.
|Wednesday, February 12
The House will meet at 9:00 AM for
legislative business. See, Rep. Cantor's
9:00 - 10:30 AM. The Information
Technology & Innovation Foundation (ITIF) will host a panel discussion titled
"The Value of Brands and Reputation in the Global Marketplace". The
speakers will include Robert Atkinson (ITIF), Carsten Fink (WIPO),
and Sanal Mazvancheryl (American University). Free. Open to the
notice. Location: ITIF/ITIC, Room 610A, 1101 K St., NW.
9:00 AM - 1:00 PM. The Center for Strategic
and International Studies (CSIS) will host an event titled "U.S.-Japan
Development Summit". See,
notice. Location: CSIS, 1616 Rhode Island Ave., NW.
10:00 AM. The Senate
Judiciary Committee (SJC) will hold a hearing titled "The Report of the
Privacy and Civil Liberties Oversight Board on Reforms to the Section 215
Telephone Records Program and the Foreign Intelligence Surveillance Court".
The witnesses will be David Medine, Patricia Wald, Rachel Brand, James
Dempsey, and Elisebeth Cook. Webcast. See,
notice. Location: Room 226, Dirksen Building.
12:15 - 1:30 PM. The DC Bar
Association's Media Law Committee will host an event titled "Media Law
Committee Brown Bag Lunch Series". The speakers will be Jim McLaughlin (Washington
Post) and Ashley Messenger (NPR). Free. No CLE credits. For more information, call
202-626-3463. The DC Bar has a history of barring reporters from its events. See,
Location: Washington Post, 1150 17th St., NW.
|Thursday, February 13
that "no votes are expected in the House".
8:00 AM - 6:00 PM. The George Mason
University law school's Law and Economics Center (LEC) will host an event
titled "100 Years of Competition Policy at the FTC" and "17th
Annual Law Review Symposium on Antitrust Law". See,
notice. For more information, call Jeff Smith at jsmithq at gmu dot edu or
703-993-8382. Location: GMU law school, 3301 Fairfax Drive, Arlington, VA.
10:30 AM - 12:30 PM. The
Senate Banking Committee (SBC) will hold
a hearing on the Federal Reserve Board's (FRB)
"Semiannual Monetary Policy Report to the Congress". The witness
will be Janet
Yellen (Chairman of the FRB). See,
notice. Location: Room 538, Dirksen Building.
9:30 AM. The U.S. International Trade
Commission (USITC) will hold a public hearing regarding preparation of a
report for Congressional committees regarding India's industrial policies that
create barriers to U.S. imports and investment. See,
in the Federal Register, Vol. 78, No. 172, September 5, 2013, at Pages 54677-54678.
This proceeding is Investigation No. 332-543. Location: USITC, 500 E St., SW.
10:00 AM. The
Senate Judiciary Committee (SJC)
will hold an executive business meeting. The agenda includes consideration of
S 149, the "STOP Identity Theft Act of 2013". Webcast. See,
notice. Location: Room 226, Dirksen Building.
2:30 PM. The Senate
Intelligence Committee (SIC) will hold a hearing on the nomination of John
Carlin to be Assistant Attorney General in charge of the Department of Justice's (DOJ)
National Security Division. Open to the public. See,
notice. Location: Room 219, Hart Building.
|Friday, February 14
that "no votes are expected in the House".
|Monday, February 17
Washington's Birthday. This is a federal holiday. See, Office of
Personnel Management's (OPM) 2014
calendar of federal holidays.
The House will not meet the week of February 17-21. See, 2014 House
|Rep. Waxman to Retire
1/30. Rep. Henry Waxman (D-CA), the ranking
Democrat on the House Commerce Committee
(HCC), announced that he will not run for re-election later this year.
Rep. Waxman (at right) was first elected with a large number
of other Democrats in the 1974 post Watergate election. He became Chairman of the HCC at
the beginning the 111th Congress in 2009 by successfully challenging the more senior
Rep. John Dingell (D-MI).
Most of his legislative efforts have not involved information or
communications technologies. However, he boasted in a
release that "Last Congress, I worked with Democrats and Republicans in the House
and Senate to pass legislation that will ease the nation's growing spectrum shortage, spur
innovation in new 'Super WiFi' technologies, and create a national broadband network for
That spectrum bill was enacted in the 112th Congress as part of HR 3630
the "Middle Class Tax Relief and Job Creation Act of 2012".
|About Tech Law
Tech Law Journal publishes a free access web site and a subscription e-mail alert.
The basic rate for a subscription to the TLJ Daily E-Mail Alert is $250 per year for
a single recipient. There are discounts for subscribers with multiple recipients.
Free one month trial subscriptions are available. Also, free subscriptions are
available for federal elected officials, and employees of the Congress, courts, and
executive branch. The TLJ web site is free access. However, copies of the TLJ Daily
E-Mail Alert are not published in the web site until two months after writing.
For information about subscriptions, see
subscription information page.
Tech Law Journal now accepts credit card payments. See, TLJ
card payments page.
TLJ is published by
carney at techlawjournal dot com
3034 Newark St. NW, Washington DC, 20008.
Copyright 1998-2014 David Carney. All rights reserved.