From the category archives:

Patent Infringement

The Apple v Samsung Patent War

by Charlie Rothbart on 23 November 2011

Introduction

Apple and Samsung are now 7 months in to their own chapter in what was coined by The Economist in October 2010 as the Great Patent Battle. The market heavyweights are now embroiled in litigation over their smartphones and tablets in 9 countries worldwide: US (District of California), Netherlands, Japan, Germany, South Korea, UK, Australia, France and Italy.

To the inward looking consumer, the battle feels more like a tit-for-tat argument than an outright attack on operability, although Apple has succeeded in obtaining injunctions against the sale of Samsung Galaxy products where Samsung has failed (at least so far) to restrict the sale of the iPhone.

So what is it all about, and why is Samsung currently being prohibited where Apple is managing to avoid court sanctions?

Many questions arise from this battle (which is actually to do with a wider variety of  intellectual property than just patents – let’s call it the IP War), some of which we will address later, but first let’s look at the IP that is at the heart of the litigation(s).

Intellectual Property

The brawling started back in April 2011 when Apple filed suit against Samsung in the US, claiming that the Samsung’s smartphones and tablets “slavishly copied” Apple’s iPhone and iPad designs. The relevant IP alleged to have been infringed involved trademarks (relating to icons for Apps), 3 design patents (D618,677, D593,087 and D504,899) relating to the user interface and the shape of the device, as well as a European patent (EP2,059,868) which covers the method of scrolling on the device – also a patent granted to Apple in the US – amongst (many) others.

For more information regarding the patents involved, Foss Patents has produced a thorough account including the citation numbers of the design patents, utility patents and trademarks at the heart of the claims.

It wasn’t long before Samsung fought back, counter-claiming that Apple infringed patents owned by Samsung relating to the user interface (including methods of displaying information on the screen, customising the home screen, as well as, rather pettily,  the icon that is displayed when the phone is in airplane mode).

Although all of the claims thus far are clearly disruptive, one wouldn’t imagine that they are too hard to work around (which potentially would not be as expensive a pursuit as litigating in multiple countries). In fact, Samsung has in the last week revealed its newly designed tablet, aimed at avoiding the sales ban imposed by the courts in Germany.

The claims which should be more damaging in this fight, are those that relate to the 3G technology such as the high speed packet access patent (owned by Samsung) and other patents relating to the operation of the devices. It seems that Samsung has the upper hand here, with more patents in these areas in its artillery, however as yet not one sanction has been imposed against Apple. Perhaps as soon as this happens, the negotiations will be able to re-open to discuss cross-licensing. Or perhaps this is not the intention of either party.

As it stands today,  it looks as if this fight is set to continue. It was announced today that the hearing in Australia has been scheduled for March 2012. Who knows what else might raise its head between now and then.

As an aside, which is not really at the crux of this post, but that caught my eye and made me smile, is Samsung’s defence to the alleged infringement of the ’899 patent; Samsung have cited Stanley Kubrick’s 1968 film 2001: A Space Odyssey as prior art. Apparently, in the film, a “device” is shown (quotation marks are used here to highlight that being a science fiction film, it wasn’t really a ‘device’…) which much like the Apple and Samsung tablets, has an overall rectangular shape with a dominant display screen, narrow borders, a predominantly flat front and back surface, and a thin “form factor”.

So Samsung is alleging that Apple has actually copied the design of the iPad from Kubrick. Whatever your thoughts about this argument, you have to admit it is an interesting defence. I wonder whether LG now have to watch out with the design of their thinnest TVs??

Anyway. Moving swiftly on…

Questions

This battle raises a lot of questions about many different aspects of both IP law and practise, the market within which Apple and Samsung operate, and the respective parties’ strategies. What could/should they be doing to better deal with this brawl?

The next post will address these questions in more detail and pose some answers as to what we at Tangible IP think is really going on.

 

 

 

 

 

 

 

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The ultimate weapon for a patent strategy is the injunction. Patents are negative rights which means that at the end of the day a patent holder can stop another company from selling, using, offering for sale or important an infringing product. As IP strategists, we’re usually trying to work hard on assisting companies to obtain a commercial advantage through establishing a strong patent and other intellectual property portfolio and using this portfolio in negotiations with partners, suppliers and competitors to strengthen a company’s competitive advatange. It’s rare that we’ll look at actually blocking a competitor from selling a product – mostly deals are done and a market for a particular product is actually strengthened by having several competitors respecting each other’s intellectual property. From time to time, however, there are times when it may be necessary to seek an injuntion to stop another company from trespassing into protected territory – and that is where the injunction comes into play. Unfortunately, the time taken to get an injunction can be extraordinarily long. Two or three years is not uncommon in many countries – and even in the quicker countries such as the UK or Germany an injunction is rarely granted within a year (and can then be appealed). Emergency injunctions may be possible – but these can be difficult to get except under special circumstances.

So it’s intriguing to read today’s story on the BBC website about LG stopping the import of Sony Playstation 3 consoles into the whole of the European Union (at least for the next ten days). A fascinating example of two large electronics companies exploiting the EU Border Seizure Directive to stop the import of an infringing product. The Directive is usually used to stop counterfeit clothing or software. It’s rare that patents are involved.

Even more fascinating – and useful when considering the single market of the European Union, is that the court in the Netherlands has decided to effectively stop all imports into the European Union, since Rottendam and Amsterdam are the main ports of entry. Of course, it is possible that Sony may try and find a new point of entry into the EU – but they risk other seizure orders in other countries.

The UK Guardian reports that up to 100,000 consoles a week are imported into Europe. At a retail price of between EUR 200 and 500 that’s going to be an impressive amount of lost sales and will not doubt be concentrating minds wonderfully on a dispute that has been going on for some time and is related to patents on the BluRay standard.

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