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Justice Department, Patent Office urge limiting sales bans

Joint policy statement urges the U.S. International Trade Commission to consider what's in the public's best interest when considering an injunction.

Sales injunctions against products found to infringe on patents may not always be in the public's interest and should be employed in very rare instances, the Justice Department and the U.S. Patent and Trademark Office recommended today.

The departments' joint policy statement echoes the position of the Federal Trade Commission, which last week ruled Google must stop blocking the use of standard essential patents by competitors. The FTC said in June that such bans on imports could cause "substantial harm" to consumers, competition, and innovation.

Companies that hold patents deemed to be industry essential are expected to offer them to those that need them under licensing terms that are fair, reasonable, and nondiscriminatory (FRAND).

The statement comes as the U.S. International Trade Commission, a federal agency with the power to enforce bans on products shipping to the U.S., considers a Samsung request to ban imports of Apple products. In its statement today, the two federal entities urged the ITC to consider whether an import ban for products found to infringe on industry standard patents was in the public interest.

"The USITC, may conclude, after applying its public interest factors, that exclusion orders are inappropriate," the policy statement said.

Without mentioning Google or Apple by name, the statement said the ITC's approach "will be important to the continued vitality of the voluntary consensus standards-setting process and thus to competitive conditions and consumers in the United States.

"In an era where competition and consumer welfare thrive on interconnected, interoperable network platforms, the DOJ and USPTO urge the USITC to consider whether a patent holder has acknowledged voluntarily through a commitment to license its patents on F/RAND terms that money damages, rather than injunctive or exclusionary relief, is the appropriate remedy for infringement," the statement said.

Samsung originally filed its complaint against Apple in August 2011, accusing the iPhone and iPad maker of infringing five of its patents. The case was then carved down to four patents, after Samsung removed a 2005 patent for MP3 music track technology. The remaining four, which the ITC says Apple did not infringe, include:

7,706,348 -- A patent for CDMA wireless technology
7,486,644 -- A patent covering packet transmission on wireless devices
6,771,980 -- A patent covering dialing on smartphones
7,450,114 -- A patent for digital documents

After an ITC administrative judge sided with Apple in September, the commission announced in November it would review the decision. A decision is expected in February.

Technology companies in recent years have increasingly turned to the ITC to settle their disputes. Companies can pursue an ITC case in parallel with civil lawsuits, and the threat of an embargo on products typically forces companies to settle more quickly.

CNET has contacted Apple and Samsung for comment and will update this report when we learn more.