non-SEP

President Obama has 48 hours to save Apple's iPhone 4

August 1, 2013: 9:29 AM ET

The 60-day review period on the ITC's bizarre import ban runs out on Friday.

Screen Shot 2013-08-01 at 9.00.53 AMFORTUNE -- Unless the White House intervenes, five older Apple (AAPL) devices -- including a version of the iPhone 4 that was one of the company's biggest money makers last quarter -- will be seized at the U.S. border starting Monday.

The import ban stems from a June 4 ruling by the U.S. International Trade Commission that has everybody from Microsoft (MSFT) and Intel (INTC) to a bipartisan group of U.S. senators up in arms. Even Verizon (VZ) -- whose iPhones and iPads were not affected -- came out against it in the op-ed pages of the Wall Street Journal.

What made the ITC's ruling so controversial its that it seemed to fly in the face of both U.S. and international law by ignoring a key distinction between two kinds of patents:

  • Standards-essential patents (SEPs), that must be used to comply with a technical standard, such as a Wi-Fi protocol. Owners of these patents, in return for the benefit of being able to collect royalties on every device that adopts the standard, are required to license them under so-called FRAND (fair, reasonable and non-discrimanatory) terms.
  • Non-SEPs, sometimes called "innovation" or "differentiation" patents. These patents have not been adopted by a standards-setting body. They can represent many years of proprietary development work, and they don't have to be shared with competitors.

The patent in question -- Samsung's U.S. Patent No. 7,706,348 on an "apparatus and method for encoding/decoding transport format combination indicator in CDMA mobile communication system" -- is said to be an essential element of the 3G protocol used in AT&T's (T) versions of the iPhone 4, the iPhone 3GS, the iPad 3G, the iPad 2 3G and the iPad 3.

The ironies are almost too many to list -- starting with a Korean manufacturer successfully preventing a U.S. company from bringing its products into its own country on the strength of an SEP patent when a U.S. district judge refused to ban Samsung devices that were found by a jury to have violated numerous Apple non-SEP patents.

If the White House is serious about its calls for patent reform, this might be a perfect opportunity to show it.

For comprehensive backgrounders on the case, see

Obama should overturn an ITC import ban on Apple phones

by Fortune senior editor Roger Parloff, as well as continuing coverage by FOSS Patent's Florian Mueller, starting here.

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