Apple v Samsung Ends, Not With a Bang But a Whimper

As is being widely reported this morning, Apple and Samsung have agreed to settle all of their ongoing patent disputes outside of the US. This means that the Australian proceedings, which have occupied, by my estimate, over 150 days of court time, and the attention of two Federal Court judges, will now be terminated, presumably without judgment.

The only thing that is surprising about this is just how freakin' long it took!

I hate to say I told you so (actually, I don't), but I kind of did tell you so, way back at the beginning of August 2011, when Apple first commenced its Australian litigation against Samsung. I made four predictions on day one, and was more right than wrong in everything but the time frame. In my defence, the duration and scope of the case was completely unprecedented, and the assumption that Apple and Samsung would reach a rational commercial resolution failed to take into account the intransigence and emotional investment of the late Steve Jobs.

Here, briefly, are those four predictions, and an assessment of how they stack up against the outcome.

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Tags: Apple-v-Samsung, Australia, Litigation, News, Smartphone wars

Samsung Can Enforce FRAND-Committed Patents in Japan

In a dispute between Apple and Samsung, the Japanese Intellectual Property High Court has ruled that damages may be awarded for infringement of a standard-essential patent (SEP) which is subject to a commitment to licence on fair, reasonable and non-discriminatory (FRAND) terms, and that this is not an abuse of the patent if the amount claimed is within the licence fee.

The following report of this recent Japanese ruling in the long-running global dispute between Apple and Samsung has been provided by Daisuke Miyamura of the Ohtsuki Patent and Trademark Law Firm, which is based in Osaka. 

Overview

A series of lawsuits regarding smart phones are being fought between Apple and Samsung all over the world.  In Japan, Apple has filed suits against Samsung four times, and Samsung has filed suits against Apple three times.  On 16 May 2014, the Grand Bench of the Intellectual Property High Court handed down its decision in one of these cases, on an appeal by Samsung against the decision of the lower court granting declaratory judgment in favour of Apple. 

Apple had originally argued that its acts, such as production, transfer and import of products did not constitute infringement of Samsung’s Japanese patent no. 4642898, and demanded declaratory judgment ruling that Samsung had no right to an award of damages based on infringement of the patent right.

The original court decision concluded that some of Apple’s products were included in the scope of the present patent.  However the original court also determined that enforcement of an award of damages based on the Samsung patent was the abuse of the right, and granted all of Apple’s requests for declaratory judgment.

Samsung appealed against the original court decision.

The Grand Bench of the Intellectual Property High Court has now ruled that enforcement of the right to damages based on the Samsung patent is an abuse of the right if the compensation exceeds the licence fee based on the FRAND obligation, but is not an abuse of the right if the compensation is within the license fee based on the FRAND obligation.

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Tags: Apple-v-Samsung, Damages, FRAND, Injunctions, Japan

What’s Up Down Under With Apple and Samsung?

Last week, the Federal Court of Australia quietly published a further interim judgment in the ongoing litigation between Apple and Samsung.  Samsung Electronics Co. Limited v Apple Inc. [2013] FCA 1142 was officially decided in 4 November 2013, however publication was delayed to give the parties an opportunity to review the judgment and request that any confidential information be redacted. 

The new judgment is, I am afraid, not very exciting reading, particularly for the lay-person.  It is a decision on the rather dry subject of whether or not Samsung should be allowed to submit further evidence relating to ongoing negotiations conducted with Apple since the commencement of the litigation.  Any content in the judgment which would have made for interesting reading – such as, for example, the terms of proposed licensing arrangements between Apple and Samsung – has been blacked out.

The answer that the court gave to Samsung, incidentally, is ‘no’.  Samsung has already filed an application for leave to appeal the decision, and a hearing on this application will take place on 21 November 2013.

However, this seems as good an opportunity as any to review the history of the Australian Apple/Samsung litigation, and provide an update on its current status. 

As matters stand right now, it does not seem likely that any judgments will be handed down on substantive issues, such as whether Samsung or Apple infringe any of each other’s patents, or whether those patents are valid, until at least the first half of 2014.  In one of the ongoing matters (to which the latest interim decision relates) there are hearing dates set down for a further 41 days, extending into April next year.  Any judgments that are issued will almost certainly be appealed by at least one of the parties, meaning that any final determination in any of the cases is unlikely until at least the second half of 2014, and possibly not until 2015.

It is worth bearing in mind that all of these cases relate to products which are already superseded.  Indeed, some of the allegedly infringing products – such as Samsung’s original Galaxy Tab 10.1, and Apple’s iPhone 3GS – are now two or more generations old.  And, contrary to what you may read in some sections of the media, no ruling in these cases will extend to newer products merely because they appear to include similar features.  A patentee always bears the burden of proving that infringement is occurring.  A court will not ‘infer’ infringement based on a different product, no matter how similar the two may appear.

Which leaves me wondering still, as I have done before, what exactly is the purpose of all this litigation – in Australia and elsewhere – and why do Apple and Samsung seem unable to reach any kind of workable settlement?

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Tags: Apple-v-Samsung, Australia, Competition law, FRAND, Infringement, Smartphone wars, Validity

Samsung’s European Proposal – Fair, Foul or Foolhardy?

It has been widely reported in the past few days that Samsung has made a proposal to the European Commission (EC) in the hope of avoiding a fine of up to $18.3 billion, following an EC investigation into the Korean company’s use of its standard-essential patents (SEPs) in ongoing litigation, particularly against Apple.

The EC opened the proceedings in January of 2012, based on Samsung’s applications for injunctive relief in various European countries against ‘competing mobile device makers’ (i.e. Apple).  While Apple has principally asserted non-standards-related patents, Samsung’s defensive strategy has been based substantially on alleged infringements of patents which it has declared as being essential to implement global mobile telephony standards.  The EC was concerned, in particular, that Samsung may have failed to honour its commitment to license any SEPs on fair, reasonable and non-discriminatory (FRAND) terms, and that such behaviour might amount to abuse of a dominant position.

Samsung is right to be concerned about the consequences of an adverse finding by the EC, which can levy fines of up to 10% of a company’s global turnover during the year preceding an investigation.  In 2004, for example, Microsoft was fined €497 million (US$794 million) over licensing, interoperability and software bundling practices.  In 2008, Microsoft was ordered to pay an additional €899 million (US$1.44 billion) for failure to comply with the 2004 decision.  And in 2009, the EC fined Intel €1.06 billion ($1.45 billion) for anti-competitive behaviour.  Samsung’s global turnover during 2011 was over $180 billion!

Samsung’s proposal has been published by the EC, which is seeking comments from ‘interested parties’.  The proposed commitment is simple enough.  As summarised in the EC press release:

Samsung has proposed to commit for a period of five years not to seek any injunctions on the basis of any of its SEPs, present and future, that relate to technologies implemented in smartphones and tablets ("Mobile SEPs") against any company that agrees to a particular licensing framework.

The licensing framework consists of: (i) a negotiation period of up to 12 months and (ii) if no agreement is reached, a third party determination of FRAND terms by either a court or an arbitrator, as agreed by the parties. If the parties cannot agree on either submitting to court or arbitration, the parties will have to submit to arbitration.

Personally, I think that this is a pretty fair compromise.  Certainly it lies somewhere between the two more extreme views expressed by IAM Magazine (that denying Samsung the ability to obtain injunctions will actually harm, rather than benefit, consumers) and by FOSS Patents’ Florian Müller (that ‘Samsung's proposals would make things worse, not better, and they would increase, not decrease, legal uncertainty’).  I do not agree with either of these positions.

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Tags: Apple-v-Samsung, Competition law, Europe, FRAND, Technology standards

Are ITC Exclusion Orders a Pre-Globalisation Anachronism?

Earlier this week I spoke to reporter Yun-Hee Kim via Skype, for the WSJ Live Asia Today program, about the decision of the Obama Administration to veto the US International Trade Commission (ITC) exclusion order issued against a number of older Apple devices.  The products in question had earlier been found to infringe a Samsung patent which is essential to implementation of the 3G international wireless communications standards.

I have embedded the video report at the end of this article, or you can view it on the WSJ Live web site.

In issuing an exclusion order, the ITC had done nothing particularly unusual.  As I will explain further below, it does not really have any other powers it can exercise against infringers.  Furthermore, it is part of the standard process that all proposed orders made by the ITC are subject to review, and possible veto, by the President of the United States within a period of 60 days.

To my mind, there are three aspects of this case that have contributed to the exceptional level of interest it has generated.  Together, they suggest that it might be time to reconsider the role of the ITC in ‘protecting’ the US market from imports of patent-infringing products, which increasingly looks like a relic from a simpler time in which companies, and industries, were either ‘domestic’ or ‘foreign’, rather than global.

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Tags: Apple-v-Samsung, Injunctions, Smartphone wars, US, USITC

Apple v Samsung—Legal Privilege and the In-House Lawyer

Apple Inc. v Samsung Electronics Co. Limited (No 2) [2012] FCA 1358 (10 December 2012)

According to an affidavit sworn by a senior legal counsel for Samsung, the number of potentially relevant documents collected by the company’s Australian solicitors, for possible disclosure to Apple in the ongoing litigation, is by now in excess of 500,000.  That is, there are over half a million documents produced by, or on behalf of, Samsung, which somebody has had to consider for the purposes of satisfying discovery notices issued by Apple!

So far Apple has identified 128 ‘categories’ of documents which, by agreement or court order, Samsung is required to produce.  It is generally up to Samsung and its lawyers to find all of the documents in their possession which fall into the specified categories.  Of the half million documents which have been collected for this purpose, over 3,000 have already been supplied to Apple.

As part of this process, a disagreement arose between Apple and Samsung over whether or not a particular selection of 154 documents was immune from production, on the basis that these documents are covered by the exclusion commonly known in Australia as legal professional privilege (sometimes also known as ‘client-solicitor privilege’, and in the US as attorney-client privilege).

This dispute has been adjudicated separately from the main litigation, by Justice Cowdroy in the Federal Court of Australia, who has inspected over half of the documents for himself in order to conclude that they are indeed protected by privilege.  However, there were also two documents, which have previously been tendered in redacted form by Samsung as evidence in the main proceeding, in respect of which Justice Cowdroy found that the privilege had therefore been waived.  Samsung is therefore now required to furnish these documents in full.

Quite aside from the general interest generated by any Apple/Samsung decision, Justice Cowdroy’s judgment should be essential reading for all in-house lawyers within companies operating in Australia.  Continuing a line of cases in which the assessment of privilege by in-house counsel has been treated as inherently suspect, Justice Cowdroy determined that sworn statements by a lawyer employed by Samsung could not be relied-upon for the purposes of determining whether or not they were properly the subject of privilege.  Fortunately for Samsung, however, he considered that there was sufficient reason to think that they might be privileged that it would be appropriate for him to take a look for himself before rendering judgement.

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Tags: Apple-v-Samsung, In-house counsel, Litigation, Privileged communications

The Australian Apple/Samsung 2013 Year Planner is Here!

With 2012 drawing to a close, Patentology is pleased to announce the availability of the Australian Apple/Samsung 2013 year planner.

This handy reference is an absolute must-have for the wall or desktop of numerous Australian IP lawyers, patent attorneys, Federal Court employees, tech journalists, patent litigation enthusiasts and – of course – Federal Court Justice Annabelle Bennett.

Justice Bennett recently timetabled a number of new hearing dates in the second half of 2013, bringing the total number of court days set down next year in the Australian Apple v Samsung case to 123.  Yes, you did read that correctly – one hundred and twenty-three.  This is in addition to the 46 days of hearings which will have taken place by the end of this year, not including last year’s interlocutory proceedings, and various dates that have been set down for administrative purposes (e.g. management conferences and directions).

Our 2013 year planner – a larger version of which is available by clicking on the thumbnail above – should therefore prove invaluable to to the many individuals involved in this gargantuan case.  It will help senior counsel to organise the expenditure of their substantial fees on European sojourns during the northern summer, while less-experienced articled clerks and junior associates will be able to plan when they might be able to grab a few hours of sleep, or invest a little time in any surviving relationships they may have outside of work!

It does not appear that any of the dates that have been reserved by Justice Bennett are speculative, or merely for contingency.  By all accounts, she has been meticulous in time-tabling the trial, and every set of dates is scheduled for hearing of a specific aspect of the case.

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Tags: Apple-v-Samsung, Australia, FRAND, Infringement, Smartphone wars

South Korea is Not a ‘FRAND Rogue State’!

On 24 August 2012, the Seoul Central District Court issued its decision in one of the many ongoing patent cases between rivals Apple and Samsung.  We did not report on the ruling at the time because, frankly, there was very little information available in English, and we therefore did not feel that there was anything much we could add to the news reports (such as this one, from Bloomberg).

Overall, while the decision produced a rare win for Samsung, things certainly did not all go the way of the Korean company.  Of four patents which it asserted against Apple, two were found invalid, and one was found not to be infringed.  Furthermore, Apple was successful in a counterclaim, which resulted in injunctions against various Samsung products, and an award of 25 million Korean won (about US$23,000) in damages.

Samsung’s single valid and infringed patent also earned it an injunction against a number of Apple’s 3G-capable devices, and a damages award of 40 million won (about US$35,000).

One widely-read commentator, however, was willing to infer a great deal from very little.  Florian Mueller, in a FOSS Patents blog post entitled ‘Apple-Samsung ruling suggests South Korea is a FRAND rogue state’, wrote:

A couple of court decisions announced in Seoul, South Korea, this morning indicate that South Korea has decided to become a rogue state in connection with standard-essential patents, essentially telling foreign companies that in order to sell their technology products to the country's 50-million population, they must bow to extortion by Samsung and LG.

This is highly problematic and will have diplomatic repercussions. The victims of such abuse will be companies from the United States, Europe and Japan, and increasingly also Chinese companies. I don't know what Apple is going to do, but it would make sense to talk to both U.S. presidential candidates at the earliest opportunity.

So far, we are unaware of any credible allegations of ‘extortion’ having been made against any Korean companies, or of any diplomatic repercussions, or indeed of any impact on the US presidential race now drawing to a conclusion!

However, this week we have come into possession of a full English translation of the Media Report issued by the Seoul Court on 24 August in relation to its ruling on the Samsung patents, and we have to say it makes very interesting reading, with none of the hallmarks you might expect of a document issued by a ‘rogue state’.

The translation was prepared by Korean IP law firm Lee & Ko (which acted as cousel for Samsung in the case), and was circulated to delegates who had attended the AIPPI Congress in Seoul on 20-23 October 2012.  Lee & Ko have kindly provided their permission for Patentology to make the translation available in full, and it can now be viewed and/or downloaded from Google Drive.  The following is a summary of the Court's main points and reasons.

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Tags: Apple-v-Samsung, Damages, FRAND, Injunctions, Smartphone wars

Smartphone Wars, Gangnam Style!

There is an incredible video on YouTube which shows South Korean pop star PSY performing his global viral hit Gangnam Style in front of a Seoul audience of 80,000 fans.  The entire audience pulses with the waving of arms in time to the music, which is itself barely audible over the noise of the crowd which, to a man, woman and child, appears to know every single word of the song.

To find a comparable achievement by an artist in the western world, you might have to go back to Queen's performance at the Live Aid convert in 1985, which was remarkable for the fact that, while the crowd of 72,000 was slightly smaller than PSY's, Freddie Mercury had them eating out of his hand despite the fact that they were not a dedicated Queen audience.

But if the PSY phenomenon demonstrates anything more broadly, it is that Apple should be afraid… very afraid!

So what has K-Pop got to do with smartphones, we hear you cry? We think quite a lot, as we shall explain.

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Tags: Apple-v-Samsung, Innovation, Smartphone wars, Strategy, The Asian Century

Apple v Samsung – Design Patents and ‘Damages’

In writing a few days ago about the $1.05 billion jury verdict in the US Apple v Samsung trial, we observed that there was a significant disparity between amounts awarded by the jury where it found design patent infringement and those awarded where only utility patent infringement was established.  (See Billion-Dollar Jury Verdict a Blow to Samsung – But How Bad Is It?)

We speculated that this may be due to the theory that consumers might be ‘tricked’ into buying Samsung devices which have been ‘slavishly copied’ from Apple products, resulting in greater loss of sales by Apple.

However, we have now learned that there is a very specific reason for the high awards for design patent infringement.  As explained in this article on the intellectualIP blog, written by Professor Thomas F. Cotter of the University of Minnesota Law School, there is a peculiar anomaly in the US law relating to the remedies available in cases of design patent infringement which justifies such high monetary compensation.

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Tags: Account of profits, Apple-v-Samsung, Damages, Designs, Infringement, US

Talking to WSJ ‘Asia Today’ Program About Apple v Samsung

Yesterday evening we spoke with WSJ Asia Digital Network reporter Deborah Kan, and DJN Managing Editor, Asia Equities, Yun-Hee Kim, about the likely global impact of the verdict in the US litigation between Apple and Samsung (for our initial views on that verdict, see Billion-Dollar Jury Verdict a Blow to Samsung – But How Bad Is It?).

Generally speaking, our view is that the immediate ‘global impact’ of the ruling will be negligible.  The US forms only a relatively small part of Samsung’s market – perhaps 20% at most – and it is the one place in which Apple is clearly dominant.  Figures released during the California trial reveal that Apple has sold about four times as many smartphones as Samsung in the US, and about 25 times as many tablets.  Yet Samsung is still the only remotely respectable competitor to Apple in the US, with all other manufacturers forming barely a blip on the charts.  At the same time, Samsung leads Apple globally in Smartphone sales, implying that non-US markets are far more important to the Korean company.

The US is Apple’s home turf.  It has the advantage there over all of its Asian competitors in terms of both marketing and IP strategy.  A loss in a US Federal Court no doubt stings – and Samsung will fight on – but it is no more than a reflection of Samsung’s overall position relative to Apple in that market. 

In Asia, however, Apple’s relative lack of experience with local cultural and legal norms is sometimes apparent.  For one thing, Asian consumers are clearly less likely to be concerned whether they are buying from a US or Asian company.  And perhaps Apple’s most glaring fumble in dealing with substantive differences in Asian IP laws was its settlement with Proview Technology (Shenzhen) to the tune of $60 million, to acquire the IPAD trade mark in China.  Apple not only failed to ensure that it obtained the Chinese rights (for a much lower cost) in the first instance, it seemingly underestimated the strength of the rights conferred by trade mark registration in China, even when the trade mark owner has no significant ongoing business interests or reputation in the mark.

As the various legal manoeuvrings continue in the US, it will be ‘business as usual’ for Samsung in the rest of the world, even as a number of other international cases continue their slow progress.

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Tags: Apple-v-Samsung, Media

Billion-Dollar Jury Verdict a Blow to Samsung – But How Bad Is It?

We presume that everyone reading this blog is by now aware that the jury considering the patent dispute between Apple and Samsung in California reached its verdict on Friday, finding strongly in favour of Apple on numerous counts, and awarding total damages of just over $1 billion against Samsung.

Right now it is harder to avoid coverage of the decision than to find it.  But for posterity, and since it is de rigueur to provide a link, this article at ZDNet provides the basic facts of the jury’s findings.

Clearly this is – for now at least – a big win for Apple.  Equally clearly, however, the dispute is far from over.  The court (i.e. Judge Lucy Koh) now has to review the jury’s decision, and it is certain that Samsung (at least) will request that she overrule many of its findings.  Apple, for its part, may push for Judge Koh to overrule one of more of the points on which it did not prevail, and will also then be pressing for injunctions preventing the continued sale of infringing Samsung products in the US.  Any such injunctions that may be granted will be preliminary in nature, however, because an appeal to the Court of Appeals for the Federal Circuit – at least by Samsung, and possible also by Apple – is also a certainty.

There is not much we could add to the plentiful general reporting of the verdict, however there are four aspects that we find interesting, and worthy of closer scrutiny:

1. firstly, it seems notable that the jury found that Samsung’s Galaxy Tab 10.1 does not infringe Apple’s US design patent no. D504,889, i.e. the Galaxy Tab is not substantially similar in appearance to Apple’s iPad;
2. secondly, for at least two of the three utility patents asserted by Apple, workarounds are either relatively straightforward, or are already in place in the current versions of Samsung’s software;
3. thirdly, the damages awarded by the jury – while substantially less that the $2.5 billion dollars Apple was seeking – are nonetheless strikingly high in some cases, relative to the apparent significance of the infringed Apple IP; and
4. finally, the jury found that Apple’s 3G devices do not infringe the patents asserted by Samsung, even though these are said to be essential to the 3G telecommunications standards.

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Tags: Apple-v-Samsung, Designs, Infringement, Patent litigation, US

Apple v Samsung – Trial Commences, But Will It Matter?

This week marked the first five days, in Sydney, of a trial scheduled to run for a total of 34 days between now and October, with Apple and Samsung before Justice Annabelle Bennett in the Federal Court of Australia.  This country has not seen a more extensive set of bookings in any major venue since US pop star P!NK played 58 dates here on her Funhouse tour in 2009!

Some good coverage of the week’s events has been provided by ZDNet reporter Josh Taylor: Australian Apple v. Samsung patent hearing begins; Samsung sacrificed Qualcomm truce for Apple war; Apple: our 3G isn't Samsung's 3G; and Samsung accuses Apple of ‘ambush litigation’.  Rather than simply rehash these stories, in this article we will review some of the issues that have arisen in recent days – both at the trial and more widely – and look at what this might all mean for the longer-term outcome of the ongoing dispute.

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Tags: Apple-v-Samsung, Australia, FRAND, Infringement, Smartphone wars

Mobile Patent Disputes Creating a New Class of ‘Celebrity Judge’

Question: What do Lucy Koh, William Alsup, Richard Posner, Annabelle Bennett and Colin Birss have in common?  Answer: They have all been receiving far more press coverage than they probably would ever have imagined when they chose a career in law!

In case you are not familiar with these names (although most readers of this blog would most likely have heard of at least one of them):

1. Judge Lucy H Koh is the judge of the US District Court for the Northern District of California, San Jose, who is presiding over the patent dispute between Apple and Samsung in that court, and who recently issued preliminary injunctions against Samsung’s Galaxy Nexus and Galaxy Tab 10.1 devices;
2. Judge William Alsup is the judge of the US District Court for the Northern District of California, San Francisco, who presided over the case brought by Oracle against Google, finding that Google’s Android operating system does not infringe Oracle’s Java patents and copyrights;
3. Judge Richard Posner is an appellate judge in the 7th Circuit who volunteered to step down into the US District Court for the Northern District of Illinois to hear patent infringement cases brought by Motorola and Apple against one another, only to toss the entire dispute out on the basis that neither party had any viable claim for damages against the other;
4. Justice Annabelle Bennett is the Australian Federal Court judge who last year issued a preliminary injunction delaying the launch of Samsung’s Galaxy Tab 10.1 tablet for five months, until her decision was overturned on appeal; and
5. Judge Colin Birss is the UK Patents Court judge who this week ruled that Samsung’s Galaxy Tab 10.1 does not infringe registered design rights owned by Apple relating to the iPad.

Of course, it is the role of a judge to hear cases and issue decisions in all matters, great and small, which may come before them.  But such is the level of interest and media attention to the global disputes currently playing out between tech giants, there has been virtually nothing of even minor note to have played out in these judges’ courtrooms that has not been widely reported.  With journalists stationed in the galleries listening to days of – mostly tedious – technical and legal testimony and argument, it is hardly surprising that anything remotely interesting, entertaining or quotable should be quickly disseminated, especially with most judges permitting (or at least tolerating) live tweeting from their courtrooms.

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Tags: Apple-v-Samsung, Motorola, Oracle v Google, Smartphone wars

UK Decision in HTC v Apple Will Not Influence Cases in Australia

On 4 July 2012, the England and Wales High Court (Patents Court) delivered a judgement in HTC Europe Co Ltd v Apple Inc [2012] EWHC 1789 (Pat), finding that five HTC devices – all running Android 2.3 (Gingerbread) – do not infringe any valid claims of four Apple patents.

This decision is the ultimate outcome of an an action brought by HTC, seeking revocation of three Apple patents.  In response, Apple counterclaimed for infringement of the three patents, and added a fourth – which HTC duly alleged was also invalid.

Overall, the court made the following findings:

1. HTC’s Gingerbread devices do not infringe any claims of European Patent no. EP2098948, entitled ‘touch event model’;
2. claims 1 and 2 of the ‘touch event model’ patent are invalid – claim 1 for obviousness, and both claims for being directed to unpatentable subject matter under the European ‘computer programs’ exclusion;
3. the Gingerbread devices infringe claims 1, 6 and 18 of European Patent no. EP1964022, entitled ‘unlocking a device by performing gestures on an unlock image’ (a.k.a. ‘slide-to-unlock’);
4. however, the claims of the ‘slide-to-unlock’ patent are invalid in view of various items of prior art, most dramatically the Swedish Neonode N1, originally launched in July 2004, in view of which the court found all Apple’s claims to be obvious (you can watch the N1 in action in this YouTube video – the ‘unlock’ feature is demonstrated at around 4:14);
5. European Patent no. EP2059868, entitled ‘portable electronic device for photo management’, was found to be valid, but not infringed by the HTC Gingerbread devices; and
6. European Patent no. EP1168859, entitled ‘portable radio communication apparatus using different alphabets’, was found wholly invalid for obviousness, though had it been valid the Gingerbread devices would have infringed.

A number of these European/UK patents have Australian counterparts, some of which have been asserted by Apple in its ongoing litigation against Samsung.

Florian Mueller, in a posting on his FOSS Patents blog, has suggested that the UK ruling ‘will have some relevance … in Australia’.  We disagree.  There is no reason whatsoever to think that the Australian courts will be influenced in any way by the outcome of a case involving a different party, different accused products, and which was decided under different laws.  If anything, quite the opposite is true – an Australian court may well be obliged to reject any attempt by either party to point to this UK decision as having some level of persuasive value.

 Read full article ► 

Tags: Android, Apple-v-Samsung, Australia, Innovation patent, Obviousness, UK

Samsung Seeks Technical Knock-Out of Apple Patents

Samsung has filed an application with the Federal Court of Australia, under the Administrative Decisions (Judicial Review) Act 1977, for a review of decisions by the Australian Patent Office to grant four of the patents currently being asserted against it by Apple in the ongoing Australian litigation.

The application, and details the patents in question, have been reported in the past days by both iTnews and ZDNet.

If Samsung’s application is successful, it could see the four patents, all of which relate to touch-screen functionality (including the famous ‘slide-to-unlock’ patent), declared null and void by the Federal Court.

In our opinion, however, Samsung’s prospects of success are at best even, and probably somewhat less than that.  There are, as we shall explain, a number of hurdles which Samsung must leap in order to prevail, and should it fall at any one of them then its whole case will fail.

 Read full article ► 

Tags: Apple-v-Samsung, Double patenting, Judicial review

Apple Not ‘The Developer for the World’ Says Hypocritical Cook

As presented in Walter Isaacson’s biography, it seems that Steve Jobs did not require a rational justification to ‘go thermonuclear war’ against Google and Android.  As we wrote back in October last year, Jobs was willing to ‘spend my last dying breath if I need to, and I will spend every penny of Apple's $40 billion in the bank, to right this wrong.’  To him, the battle over smartphone technology was not about business or money.  Isaacson reports Jobs telling former Google CEO Eric Schmidt, ‘I don't want your money. If you offer me $5 billion, I won't want it. I've got plenty of money. I want you to stop using our ideas in Android, that's all I want.’

Jobs had built Apple into the world’s biggest tech company, and so he could really do no wrong in the eye’s of Apple shareholders and aficionados.  But the fact is that starting a global thermonuclear war, or spending every cent of the company’s money in pursuit of a principle, is not good business.  That path leads ultimately to shareholder revolt!

Jobs’ successor, Tim Cook, has therefore inherited a potential ticking time-bomb.  Apple had some early wins in the patent disputes which it started, but as the various court proceedings drag out over months – and those months will become years, unless there is a settlement – the company is finding itself increasingly mired in suits, countersuits, side issues and appeals.

It should therefore some as no surprise that Cook is trying to recast the battle as one which has a rational business foundation, and in which Apple is on the side of goodness and light.  The cost and distraction of all these law suits must now be justified to observers and shareholders as something more than the result of one person’s outrage.

So, when questioned about the ongoing IP disputes, Cook has taken to responding that, while he would prefer to settle, Apple will not be the world’s developer.  At Apple’s quarterly conference call on 24 April 2012 (as reported by CNET) Cook said ‘I would highly prefer to settle than to battle.  But it’s important that Apple not become the developer for the world. We need people to invent their own stuff.’

 Read full article ► 

Tags: Android, Apple-v-Samsung, FRAND, Smartphone wars

Apple v Android Part V: Open standards, IP strategy, Resolution?

The patent landscape maps in part four of this series showed that the key Android advocates – including Samsung and Motorola/Google – are massively superior to Apple in terms of the sheer numbers of patents in their portfolios.

But, as we explain in this fifth and final part, many of these patents are encumbered by licensing obligations arising from their relationship to industry standards.  While the scope of these obligations is yet to be fully tested in court – and may differ from country to country – it is already clear that such encumbrances can significantly complicate the deployment of patents for both offensive and defensive purposes.

With neither Apple nor any of its Android-supporting rivals having clearly established an upper hand, we can no doubt look forward to more strategic manoeuvring on all sides before any final resolution of the ongoing disputes.

Samsung’s FRAND dilemma

Samsung’s patent portfolio is by far the largest in the mobile communications space. It is common wisdom now that one justification for building a portfolio is to provide a strategic defence against infringement suits brought by competitors – a.k.a. the MAD (mutually-assured destruction) theory of patent stockpiling. However, the ongoing litigation with Apple is revealing a strategic weakness of Samsung’s portfolio, in the form of the company’s involvement in the setting of industry standards for mobile communications protocols and technology. Samsung has been extensively involved with the 3rd Generation Partnership Project (3GPP), which is responsible for maintaining and developing standards for mobile communications from GSM onwards. Over time, it has developed and contributed many technical solutions to the various challenges and problems encountered in the implementation of workable, robust and widely supported standards. The R&D effort involved in making such contributions is not insubstantial, but also not without reward.

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Tags: Apple-v-Samsung, Intellectual Asset Management, Smartphone wars

Apple v Android Part IV: The IP Landscape

We concluded Part III in this series with a chart showing the relative sizes of the relevant patent portfolios of some of the major players in the mobile marketplace.  This showed Apple to be substantially out-gunned by the likes of Samsung, Motorola and Microsoft, in terms of patent numbers.

But there is more to a patent portfolio than the sheer number of patents it contains.  It is also important to look at what the patents cover, since some will be strategically more valuable than others.  Of course, it is completely impractical to read nearly 60,000 patents to determine what each one of them is about.  Fortunately, there are visualisation tools, such as the ThemeScape mapping capabilities of the Thomson Innovation package, which allow us to get a view of the big picture, without the need to drill down into all the details.

Overview

The figures in the sections below show the results of patent landscape mapping based on the portfolios of mobile patents held by Samsung, Motorola, Microsoft, the Rockstar Bidco consortium, Apple, Oracle, HTC and Google, which were identified in the search described in Part III. 

The maps reveal the strengths and weaknesses of each company’s portfolio. In summary:

1. The starkest contrast is between Microsoft and Samsung, which dominate completely different regions of the landscape, reflecting their strengths in software and hardware respectively.
2. Google’s acquisition of Motorola Mobility will give its portfolio a profile that is very similar to Samsung’s, albeit on a smaller scale.
3. While Apple’s portfolio is smaller, it has significant concentrations of patents in the critical region between the Microsoft-dominated software zone and the hardware zones which are heavily populated by Samsung, Motorola and Nortel.

The strength of Apple’s portfolio therefore appears to lie in areas that are essential to the user experience, including touch-screen and display technologies, image and audio processing, and user interaction – literally, as well as in the virtual geography of the map, at the interface between software and hardware. This is certainly an area in which Apple has contributed significant innovation and may well represent a strategic sweet spot in the mobile device space.

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Tags: Apple-v-Samsung, Intellectual Asset Management, Smartphone wars

Apple v Android Part III: The IP Armoury

In the previous article in this series, we looked back at the struggle between Apple and Microsoft for ‘ownership’ of the desktop.  We argued that this was a confrontation between opposing ‘closed’ and ‘open’ models – not only of the software and hardware platforms, but also of the fundamental way in which the two companies do business.

There is no question that Microsoft was the clear winner, despite some of the uglier consequences of trying to support a huge range of different hardware and software configurations.  Yet despite this loss, Apple – and Steve Jobs – have persisted with the closed platform model.  So what did they learn from history?

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Tags: Apple-v-Samsung, Intellectual Asset Management, Smartphone wars