Justice Department and USPTO weigh in on using SEP patents to win sales bans

The U.S. Justice Department and the USPTO made a joint-statement on Tuesday relating to an issue that has affected Samsung, Apple, Motorola and other smartphone manufacturers. In the statement, the two agencies agreed that the infringement of standards-essential patents should not be punished with a sales ban except in rare cases. The FTC has also agreed that the infringement of standards-essential patents  should be punished with monetary damages instead of a injunction. The statement appeals to the ITC to refrain from using exclusion orders as they could be against the public interest.

Last month, the FTC said that Motorola Mobility was not entitled to ask for a sales ban against the Apple iPhone and the Apple iPad for infringing on a SEP patent dealing with wireless technology. The other day, the FTC found that Samsung was using its standards-essential patents to threaten its rivals with sales bans, exactly what both the Justice Department and USPTO are trying to avoid. Standards-essential patents are supposed to be licensed using Fair, reasonable and non-discriminatory negotiations, better known by the acronym FRAND.