Yesterday the Federal Circuit issued a blank Rule 36 summary affirmance of the U.S. International Trade Commission’s (ITC) determination that Apple did not infringe a Samsung patent alleged to cover a UMTS standard. Recall that last year the ITC entered an exclusion order against Apple products found to infringe a Samsung standard essential patent, but the U.S. Trade Representative disapproved that exclusion order (see our post of Aug. 3, 2013). That ended the investigation as to that patent because the U.S. Trade Representative’s decision was not reviewable.
But Samsung appealed the ITC’s determination that Apple’s products did not infringe another alleged standard essential patent. In that appeal, Apple raised issues with respect to its standard-setting body defenses including the propriety of entering an exclusion order for a standard essential patent (see our post of Feb. 5, 2014). Samsung responded. And the Federal Circuit issued a Rule 36 summary affirmance without comment on the standard essential patent or other issues, simply stating “AFFIRMED. See Fed. Cir. R. 36.”
Although Samsung technically could seek rehearing at the Federal Circuit or even petition Supreme Court review, the likelihood that any such approach would succeed is questionable in a case involving summary affirmance of a non-infringement decision that may involve fact-specific technical arguments. And so the case that received so much world-wide attention not so long ago may have gone gently into that good night.