[corresation]

The ITC found the Apple could neither prove that the infringed was covered by FRAND, nor did Apple agree to what the ITC thought was a reasonable agreement. Of course the ITC considers FRAND which is exactly why Motorola's injunction against the Xbox was denied.

[jdrobins2000]

Citation please. From reading the Commission Opinion document, it appears to me that what was in dispute was whether Apple proved that Samsung had not made at least one FRAND offer, and even if not, whether Apple proved the ITC didn't have authority to apply an import ban because of an SEP. Commissioner Pinkert offered a dissenting opinion (from a footnote in the report): "...Samsung does not dispute that it has made FRAND licensing commitments in regard to the '348 patent, and, as explained in his dissenting views, he has considered the evidence before the Commission in the current phase of the investigation and has found the weight of the evidence to indicate that Samsung has not made FRAND licensing terms covering the '348 patent available to Apple."

So apparently it is not clear whether Samsung made a FRAND offer to Apple. Most details of negotiations are redacted, so I cannot make a judgement. It seems irrational to me that the ITC's comments regarding the negotiations seem to require Apple to irrefutably prove Samsung's offers weren't FRAND, but don't require Samsung to prove they were FRAND. Unfortunately in this case I believe all of Samsung's other licenses involve cross-licenses of multiple SEPs from each party, so there is no easily referenced objectively reasonable license fee for the single patent.

In case of a stalemate in negotiations, I am not sure what the proper remedy should be, but an import ban on the would-be licensee seems to put far too much power into the hands of SEP licensors.