Will it? We’ll find out for certain come Friday, the deadline for the Obama administration to weigh in on the matter. But in the meantime, the chorus of voices urging the White House to take particular care with this decision is growing. Last week, Verizon Communications called for President Obama’s intervention in the case, in a Wall Street Journal editorial.
Now a bipartisan group of senators has sent a letter to United States Trade Representative Michael Froman — the guy in charge of the presidential review of the ITC order — urging him to carefully consider the public interest as he weighs whether or not to veto the ITC’s order blocking the U.S. sale of AT&T iPhones prior to the iPhone 4S and the iPad 2. The letter, which takes no position on the merits of the case, cautions Froman to be wary of companies that use so-called standards-essential patents that are to be freely licensed at a “fair, reasonable, and nondiscriminatory rate” (FRAND) as anticompetitive weapons. And it urges him not to set a precedent that might encourage such behavior. From the letter:
“Any precedent that would enable or encourage companies to include their patented technology in a standard, commit to license included patents on FRAND terms, and then seek or threaten to seek to secure an exclusion order against a willing licensee despite a breach of that commitment would thus implicate significant policy concerns. Such an outcome could undermine broad participation in the standards-setting process and in turn threaten the meaningful benefits these standards provide for competition and consumers.
Signing the letter, Sen. Amy Klobuchar (D.-Minn.), chairwoman of the Senate Judiciary Committee’s Subcommittee on Antitrust, Competition Policy and Consumer Rights; Sen. Mike Lee (R.-Utah), ranking member of the Senate Judiciary Committee’s Subcommittee on Antitrust; Sen. Barbara Boxer (D.-Calif.); and Sen. Jim Risch (R.-Idaho).
That’s a profound statement of concern over this looming exclusion order. And while it stops short of explicitly calling upon the White House to exercise its seldom-invoked power to overturn an ITC order, it’s pretty clear that its authors see this situation as a perfect opportunity for the Obama administration to put some real muscle behind its recent calls for patent reform.