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CNBC interviews Chris Baxter on the Apple-Samsung patent wars
Chris Baxter
Chris Baxter

What is this Apple-Samsung patent war all about?

Apple has taken action against Samsung in a number of countries for patent infringement relating to Apple patents covering its touch screen and the hand gestures which control it, and claims that Samsung “slavishly” copied its market-leading iPad tablet computer. Apple’s legal feud with Samsung started in April with a US lawsuit concerning the company’s Galaxy Android smartphones and Galaxy Tab tablet computer. Apple argued in U.S. courts that Samsung’s devices imitated both the iPhone and iPad.

Naturally, Samsung filed a counter-suit against Apple and the battle eventually made its way to the US International Trade Commission, which has the power to block the importation of devices into the US, and the case also found its way over to the European courts. The Galaxy Tab 10.1 was briefly banned in most of Europe, but currently now just in Germany.

Australian court issued interlocutory injunction last Thursday (13th) banning sale of the Galaxy Tab 10.1, your comments on that

The Australian Federal Court issued an interlocutory injunction on Samsung selling its Galaxy Tab 10.1 device on Thursday last week until a full hearing takes place.

Apple’s per-emptive Australian patent suit began in late July this year and relates to infringement of two patents.

This makes Australia the second country in the world (first was Germany) to order an interim ban against the Galaxy Tab 10.1 and the third country to grant Apple an injunction against an Android-based Samsung product.

Reasons Justice Bennett gave for the injunction included:

  1. Apple had a prima (prime) facie case that Samsung had infringed two of its patents relating to touch screens and the gestures that control them
  2. The possible damage to Apple if the iPad competitor were to be sold would be substantial.
  3. From April when proceedings commenced in the US, Samsung proceeded with its eyes wide open.
  4. “The balance of convenience was almost even … there were several factors that favored Apple.”

Apple had requested that Samsung provide it with advanced copies of any tablet 10 days before they sought to launch in Australia so that they could assess patent infringement but Justice Bennett found that would be unduly restrictive.

The court is expediting the full hearing which may take place as early as January next year.

What will the effects of this case be on Samsung and the market?

The injunction will stop Samsung selling its Galaxy Tab 10.1 before the case is finally decided.

This puts Samsung in a difficult position – it could either:

  • Launch a version of the Galaxy Tab without features subject of the injunction – although whether Samsung will have to move very quickly to develop and release this version before the tablet-buying summer holiday season.
  • Not launch the Galaxy Tab in Australia and focus on its larger mobile phone technology line.
  • Continue to attempt to invalidate the Apple patents.

In either case, Apple will be very happy.

Samsung will likely have lost millions in trying to launch the Galaxy Tab 10.1. Samsung told the court it would scrap the release of the Galaxy 10.1 if the injunction were granted because missing the holiday season would make the new tablet “dead” by the time it reached market.

Apple’s win is likely to have a ripple effect, influencing the parties’ approach to their legal battles in other countries, as well as possibly encouraging Apple to seek more broad-ranging injunctions against other Samsung products (such as its 7.7″ tablet, which was banned from sale in Germany in September).

Samsung has filed a cross-claim against Apple for its alleged violation of Samsung’s third-generation transmission technology patents through a cross-claim filed on September 16, 2011 with the Federal Court of Australia, New South Wales. Samsung will attempt to ban the iPhone 4S from sales in France and Italy.

However this is problematic since those patents were part of the FRAND standards Samsung participated in creating and it has an obligation to license them to Apple on fair and reasonable terms, while Apple doesn’t have any such obligation with respect to its touch screen technology patents that are not related to any technology standards.

Tell us more about the patents

  1. The first Australian patent (2005246219) relates to a multipoint touchscreen using a capacitive technology which essentially means a touchscreen capable of sending particular signals to the operating system in response to multiple touches.
  2. The second is Australian patent 2007286532 relates to heuristics (providing precise outputs based on imprecise manual inputs) and the relevant claims are focussed on the ability to enable vertical scrolling when the swiping motion on the screen is not exactly vertical or has a horizontal component or on the basis of the first part of the swiping motion only. (the second part of the swiping motion, could, for example, be across the screen and this would be disregarded.)

U.S. judge says Apple has “problem” establishing validity of patents. Your view?

A patent, even when granted, can be found invalid, effectively in hindsight, if it can be determined that disclosure of the invention took place in the public domain prior to the filing date of the original patent. In Samsung’s patent invalidation case against Apple, it has even used portions of Stanley Kubrick’s 1969 science fiction movie “2001 A Space Odyssey”, in which the astronauts were shown using tablet-like computers, to invalidate Apple’s patents.

Any prior disclosure, whether found on the internet, in a movie, in print or indeed in an earlier filed patent disclosure, can be used in an attempt to invalidate a patent. We call this “universal novelty” and it actually “sets the bar very high” in terms of the “newness” of an invention if it is to be upheld in a court action. The other complexity is that each of Apple’s Australian patents, indeed its patents in any country, will have many independent claim sets defining the individual inventions and, for each of these, a hierarchy of “fall back” positions in the form of dependent claims, which can resorted to even if the main claim is determined by the court to be too broad.

It is interesting to note that a similar request for an injunction was denied on the same day in the United States by US District Judge Lucy Koh (trial court, can be appealed to the appeal court of the federal circuit), who was concerned that Apple might have a problem establishing validity.

Patent validity is determined almost universally around the world if they describe a technology that is both new and non-obvious to someone familiar with the technology area.

These assessments are made in light of prior documentation and acts anywhere in the world – attorneys call that the prior art.

In relation to the first patent, Samsung relies on two pieces of prior documentation.

If the patents are found to be valid, Samsung may still be able to proceed with a tablet launch if they are able to avoid infringement.

Justice Bennett’s prima facie case for infringement centred on the meaning of one phrase – to simplify things whether “dispose” means to “locate at” or “locate on”.

By finding expert evidence to support their interpretation Samsung may be able to avoid infringement.

In relation to the second patent, Samsung’s argument for non-infringement centred around the Galaxy device using channel location technology as opposed to computing the angle of a user swipe.

Intellectual property rights protection & impact on competition in the tech space

The result of this case for consumers is that there will be less choice in tablets available and so less competition in the market.

However, having spent huge amounts in research and development pioneering the modern interface for mobile computing platforms, the financial gain by a more exclusive market share afforded by its patent will aid in recouping costs and no doubt help Apple further advance technology and improve its products.

The counterargument is the money invested by companies such as Apple in Samsung in cases such as this could be better spent on R&D if no system of exclusive patent rights existed.

But what is the international implications of this case? Is there a chance that Samsung will have to withdraw its range of Galaxy tablet computers from the market?

The first thing to remember here is there is no such thing as an “international patent”. To be effective, Apple must take action against Samsung in every country in which it wishes to prevent Samsung manufacturing, using, or selling its tablet computers. I guess in many ways this case reminds me very much of the Kodak vs. Sony patent war in the 1990s relating to CCD devices for digital cameras. Apple has spent huge amount of money developing its iPad and likewise Samsung its range of Galaxy tablet computers and phone devices. Each party has filed hundreds of patents internationally, covering various aspects of the physical design and manufacture of its products, their use, and the software which runs on these devices. Each company, in reality, probably has strengths and weaknesses in its patents and technological strategies.

In reality Apple would probably like to use some of Samsung patents in its future products, and likewise Samsung. So, just like the Kodak vs. Sony patent war which took place at the very early days of affordable digital cameras, you must look at this Apple vs. Samsung action as a long running dispute which will undoubtedly eventually be settled and probably certain patent families agreed to be cross-licenced as part of this settlement. Cross-licensing deals is the normal way that patent disputes are eventually sorted out between large competing corporations. This is what happened after many years of expensive court battles between Kodak and Sony. It is very early days in this dispute and you really have to regard this patent infringement case as only the “opening salvo”.

There’s actually more than 20 cases in 10 countries between Apple and Samsung including in:

  • US
  • Germany
  • Japan; and
  • South Korea

The temporary injunction against Samsung in Australia could strengthen its position in Germany further ahead of an appeal hearing there and in other jurisdictions.

Samsung is the first Android OEM to suffer economic damage by not being able to launch products in certain markets. It’s unlikely to be the last given the broad claims of Apple’s patents.

Shows how serious a threat Apple regards Samsung to be particularly with the Android operating system.

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About the author
Chris Baxter
Managing Director, Patent & Trade Mark Attorney
Chris Baxter is a Sydney patent and trade mark attorney specialising in software patents, computer patents, medical device patents and engineering patents.

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