Apple/Google End ‘Thermonuclear’ War – But What of Samsung?

Apple and Google have announced in a joint statement that they have ‘agreed to dismiss all the current lawsuits that exist directly between the two companies’ and ‘to work together in some areas of patent reform.’

The statement goes on to say that ‘[t]he agreement does not include a cross license.’

The settlement is symbolically significant.  It has been widely accepted, since the commencement of Apple’s various patent lawsuits against Android-based handset makers back in 2010, that the ‘true’ target of all this litigation was Google, as the provider of the Android operating system.  This was confirmed in Walter Isaacson’s authorised biography of Steve Jobs, which revealed the late Apple CEO’s strong animosity towards Google, including his infamous vow to ‘go thermonuclear war’ to ‘destroy Android’.

At the time, however, Apple faced a challenge in striking directly against Google, which did not actually manufacture and sell any Android-based products of its own.  Rather than pursue some complex (and potentially unsuccessful) indirect infringement theory against Google itself, Apple chose to attack Android by suing manufacturers, such as HTC, Motorola and Samsung, which it saw as responsible for direct infringement of its patents.

Now, more than four years after Apple’s ‘first strike’ against Taiwanese smartphone maker HTC, it is very clear that Android has not been, and will not be, ‘destroyed’ by patent litigation.  On the contrary, in Q1 2014, 81% of smartphones shipped were Android-based, while just 16% ran Apple’s iOS.  Tit-for-tat lawsuits have ultimately resulted in little more than a growing series of stalemates, the most recent of which was a ruling in the dispute between Apple and Samsung in California earlier this month which is widely regarded as inconsequential to both parties.

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Tags: Apple, Google, Motorola, Samsung, 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

The Fraught Issue of FRAND III: Antitrust and the Future of FRAND

In Part I of this series, we introduced a few background concepts, namely: FRAND licensing; royalty stacking; and patent pooling. In Part II we focussed on the recent political manoeuvrings of various interested parties, in particular Google, Apple and Microsoft. In this final part, we look at the tension between patents, FRAND licensing agreements and competition law, and what this might mean for the future of FRAND and the current disputes.

On 31 January 2012, the European Commission (EC) announced that it has opened a formal antitrust investigation into whether Samsung’s use of its standards-essential patents constitutes illegal anticompetitive behaviour.  It had been conducting a ‘preliminary investigation’ for some months, as part of which the EC had requested that both Samsung and Apple provide information regarding ‘the enforcement of “standards-essential” patents in the mobile telephony sector’.  Samsung’s response at the time was that it had ‘at all times remained committed to fair, reasonable and non-discriminatory (FRAND) licensing terms’ for its wireless standards-related patents,” and was cooperating fully with the EC.

Since then, both Apple and Microsoft have filed official complaints about similar behaviour by Motorola Mobility (with Microsoft’s complaint also naming Google).

The main competition concern appears to be over holders of standards-essential patents seeking injunctions based on those patents, which they have pledged to make available on FRAND terms.  As discussed in our previous article in this series, we cannot see why a patentee should not be entitled to an injunction in appropriate circumstances, such as when another party has refused to take a license on identical terms to other licensees.  However, Europe’s competition regulator, and companies that do not have large portfolios of standards-essential patents, may well see things differently.

In this final article in our series on FRAND we look at the antitrust complaints, the effect these may have on the balance of power in the ongoing disputes, and what this may mean for future developments.

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Tags: Apple-v-Samsung, Competition law, Europe, FRAND, Google, Licensing, Microsoft, Motorola