On August 28, 2013, Samsung filed a Submission with U.S. Trade Representative (“USTR”) seeking the President’s disapproval of a limited exclusion order and cease and desist order issued by the Commission in Certain Electronic Digital Media Devices And Components Thereof, Inv. No. 337-TA-796. The remedial orders issued by the Commission exclude certain Samsung smartphones that infringe Apple’s ‘949 “touch screen” patent and ‘501 patent directed to a receptacle switch for plug detection. Samsung acknowledges that “the volume of products actually affected by the Commission’s orders is perhaps small” and that the Commission “found that Samsung’s design arounds were non-infringing, and expressly excluded them from the scope of the remedial orders.” Nevertheless, Samsungargues that “the patents cover small, insignificant features of complex electronic devices” and that “the orders unfairly grant Apple a remedy well beyond the contribution of its inventions….” Samsung contends that “USTR has a strong policy interest in assuring that the scope of any remedy is commensurate with the scope of the invention at issue.” Samsung advocates that, in order to obtain injunctive relief, a Complainant should be subject to the same “causal nexus” standard (see Apple Inc. v. Samsung Elecs. Co., Ltd., 695 F.3d 1370 (Fed. Cir. 2012)), and eBay factors applied by the U.S. District Courts. Pursuant to 19 U.S.C. §1337(j), a Presidential decision, if any, is expected by October 10, 2013, subject to tolling in view of the government agency shut down.
