[Editorial] Endless battle

Will Samsung Electronics be able to turn the tables on Apple Inc. even after the U.S. government’s unexpected overruling of a sales ban on some older iPhone models in the American market?

That’s the question being raised as Samsung continues its legal battle against Apple. The world’s No. 1 smartphone maker disclosed Monday that it has submitted an appeal against a June ruling by the U.S. International Trade Commission that Apple was not violating some of its patents.

In June, the ITC did rule that Apple infringed upon one Samsung patent and issued an order prohibiting the American tech giant from bringing in some of its devices manufactured in China. But the commission dismissed Samsung’s claim that Apple also violated three other Samsung patents.

Samsung has chosen to appeal the ITC decision to a U.S. federal court of appeals. If the court rules in favor of the Korean company, the ITC will have to go over the case.

Samsung’s announcement came following the U.S. Trade Representative’s surprise decision last week to veto the ITC’s import ban on Apple products from China.

The USTR said a product ban was inappropriate because the Samsung patent that Apple was accused of violating was a so-called FRAND patent.

FRAND stands for “fair, reasonable and nondiscriminatory.” It is an international licensing rule under which a standard-setting organization adopts a patent as an industry standard and requires its holder to license it to anyone on reasonable terms.

The USTR’s argument is that while standards-essential patents should be easily accessible for licensing under FRAND terms, this was not the case with the Samsung patent.

Samsung is seeking to bypass the USTR’s veto. The three other patents that it claims Apple has violated are non-FRAND patents. If the appeals court and then the ITC uphold Samsung’s claim, the USTR won’t be able to apply the logic it used to overrule the June ITC decision.

Samsung’s more immediate concern is the imminent ITC ruling on Apple’s complaints filed against its Korean rival. If the commission rules in Apple’s favor, Samsung will be prohibited from selling some of its older products in the U.S. But this is unlikely to deal a serious blow to Samsung.

The USTR’s intervention is widely seen as an unwarranted move aimed at protecting Apple. Yet it strongly suggests that it is time for the two tech powerhouses to stop their meaningless and highly costly patent war. It is increasingly clear that neither can emerge triumphant.