From the monthly archives:

December 2011

Apple, Samsung, and Antitrust

by Charlie Rothbart on 1 December 2011

It has been announced today that Samsung has had its first little victory over Apple, with the ban on Samsung’s sale of tablets in Australia being overturned. This could be very good news for Samsung, especially if it manages to get the product back on the shelves in time for the Christmas rush.

A stay has been granted until Friday, in which time Apple can appeal the decision, although whether or not it will do so remains to be seen.

Samsung is now hoping that this decision will pave the way for other jurisdictions to follow suit, and that the German courts will also lift the injunction it imposed against Samsung.

This case could have significant influence over the way in which standards-essential patents can be used in the future. OK, Samsung’s bans have been in relation to infringement of less fundamental technology, but the battle has highlighted to the world the dangers of patents being used to block competitors in the market where the patents relate to technology essential to the market as a whole.

The ITC and the EU have both started antitrust probes, with the EU Commission issuing RFIs to both companies last month. The investigation appears to be more of a threat to Samsung, as it is only Samsung asserting standards-essential patents in this instance. However, although there are rumours that Samsung refused to negotiate a licence with Apple before this litigious period began, there is a risk that Apple could also be fined for not taking a licence under FRAND.

Having said all of that, so far Samsung has been unsuccessful in stopping Apple, so whether it can really be said that these patents are being asserted with anticompetitive outcomes is questionable.

We will know more further down the line. Antitrust investigations can take several years, and if the RFIs are still being completed, it is very early days and nothing will be made public at this stage.

Rather than keeping an eye on who does and does not get fined, it will be more interesting to watch the impact this litigation and investigation has on the future of standards-essential patents, FRAND, and patent litigation in the telecommunications market in general.