Antitrust Partner Discusses Veto of ITC Smartphone Exclusion Order

Law360 | August.05.2013

Antitrust and competition partner Jay Jurata was interviewed by Law360 about the Obama administration's veto of an ITC exclusion order that would have banned the importation of older iPhones and iPads into the United States.

Under the criteria of the exclusion, "the number of situations in which one is warranted is really, really small," said Jurata, who also called the veto a "game-changer."

When patents are essential to industry standards, accused infringers cannot design around them, so injunctions blocking sales of popular products can give essential patent owners significant leverage when negotiating a license. The limits the White House has placed on ITC has blunted that tool and could steer infringement cases on essential patents away from the trade forum, Jurata said.

"I think the ITC's attractiveness as a forum for standard-essential patents is not going to look much different from district court, where the likelihood of getting an injunction is nil to zero," he stated.​