I disagree strongly with at least parts of this article. Offering no cash alternative but instead demanding a cross license to non-FRAND patents is by definition discriminatory as not every licencee will have patents and no one else will have the same patents.
Not stated, but if I read the article correctly Samsung made a money or patent offer:
"Notably, the Commission dismissed Apple’s arguments that (1) Samsung’s initial offer was so high as to show bad faith, and (2) Samsung’s attempts to get a cross-license to Apple’s non-SEPs violated its FRAND commitments."
This reads to me like they offered Apple an cash deal and an alternative patent deal. Sounds fair to me.
Firstly the article explicitly stated the authors belief that it could be FRAND and I disagree with that. Really that is probably the fundamental area for disagreement in these FRAND cases and can be debated without reference to a particular case (and having to get into a detailed who did and said what session).
Secondly I'm not sure that there is much dispute that any cash deal offered was probably beyond the bounds of reasonableness.
I fear the ITC wants to be relevant so it is using the only sanction it has (import bans) despite the inappropriateness in the case of FRAND patents.
