Apple vs Samsung: A Galaxy of Litigation

We missed out on the Cretaceous Period, got our start in the Devonian Period,  woke up to ourselves in the Pliocene and have been running straight toward the Litigious Period. As megaliths and behemoths battle it out over who owns what patent, and which gadget belongs to who, the consumer is likely to be the victim in what looks to be a long and fierce battle. There seems to be the distinct possibility that more products will be blocked from sale. Samsung says its mammoth tit-for-tat patent battle with Apple could have been avoided if the latter wasn’t so trigger happy, as the Korean giant’s attempt to ban sales of Apple’s iPhone 4S in Australia gets set for a full court hearing in March 2012.

In the Federal Court in Sydney this week, it was decided that the patent infringement case would go to an early full hearing in March and in return Samsung would pause its attempt to temporarily ban the device between now and then. In an amusing turnaround – Apple has consistently argued it wants litigation NOW, and has repeatedly stated it wants this hearing to go ahead immediately – In this latest case, Apple has argued that it could not be ready for such an early final hearing. In what seemed like a replay of arguments in the Samsung vs Apple Galaxy Tab case, Apple, which wanted to ban the Samsung tablet from sale due to patent infringement, was seeking an early final hearing, while Samsung was arguing it could not be ready in time. This time the shoe was on the other foot. 

Justice Bennett repeatedly rejected Apple’s lawyer’s reasons for why an early hearing could not go ahead and she became increasingly agitated. She said Apple typically released a new iPhone each year and delaying the start of the case may push it back even further as Samsung would “have to recast their entire case to deal with a new product”.

“They are trying to expand the Android market. The longer it’s left the harder it will be for Samsung,” Justice Bennett said. ”It’s exactly the same reverse situation it was in the last case [concerning the Galaxy Tab 10.1].”

Samsung said in court that it had a “very close commercial relationship” with Apple, one of its biggest clients, until April this year when Apple sued Samsung for patent infringement. Apple claimed the Galaxy Tab copied its iPad. Samsung’s lawyer said the pair were in broad licensing discussions in the lead up to April, which “might have avoided litigation”. “I assume we’re way past that point now,” Justice Bennett replied.

Samsung’s lawyer continued: “In effect the informal policy of not suing Apple for patent infringement was terminated when Apple sued Samsung for patent infringement in California and then elsewhere.” The patents that were the subject of this case, Samsung said, had been licensed to other manufacturers but Apple did not seek to obtain a license.

“Apple was on notice that it was infringing Samsung’s essential 3G patents from April 2011 at the very least and thereafter proceeded with its eyes wide open to take steps ultimately in Australia in October that involved infringement of patents,” Samsung’s lawyer said.

He said Samsung would present evidence showing that in the four or five months preceeding the iPhone 4S launch, Samsung was “gaining substantial market share” at the expense of competitors including Apple but the launch of the iPhone 4S had “an immediate impact”. Samsung’s case against the iPhone 4S – which also names previous iPhone models – will centre on three patents which Samsung claims Apple has infringed.

Apple’s lawyer argued this case was different to the Galaxy Tab case as here Samsung was trying to target Apple with “standard essential patents for the operation of the 3G telephone network”.

“They agreed to an irrevocable license to third parties on fair, reasonable and non-discriminatory terms,” Apple said.

Samsung said it only declared it would be open to negotiating a license and that no license had actually been granted. Both sides have licensing experts backing up their position. Apple is also challenging the validity of the patents variously on grounds of obviousness, clarity, utility and novelty.

Justice Bennett said there would be signficant overlap between this and the Galaxy Tab case and she said she may take into account evidence presented there in the new case. “There does seem to me to be a huge duplication of time and effort,” Justice Bennett said.

A directions hearing is set down for Friday morning which will set the exact date in March when the full hearing will occur and other particulars. Apple was successful in getting a temporary ban on the Galaxy Tab 10.1 in Australia, but that hasn’t stopped online retailers offering the product. Samsung is appealing the ban and the appeal will be heard later this month. The case is one of many tit-for-tat patent battles between Samsung and Apple that are running all over the world.

October 17, 2011: Apple’s bid to prevent Samsung from launching any new tablet in Australia until its patent infringement case goes to a full hearing has been rejected by the Federal Court. Justice Bennett also denied Apple’s request that it be given advanced copies of any tablet that Samsung may launch in Australia until the full hearing, which is likely to take place next year. Justice Bennett’s final orders were that Samsung be prevented from launching “any version of the Galaxy Tab 10.1″ until the completion of proceedings.   Apple’s lawyer stated that the Apple was afraid that Samsung would launch a new tablet in Australia without Apple having the chance to check if it infringed its patents. “Our submission is that direction which would provide us a copy of the version proposed to be launched 10 days in advance,” said Apples Lawyer.

Samsung’s lawyers said such an order would be almost a rolling mandatory injunction that goes beyond the subject matter of the dispute. ”Why should Samsung be put in a different position to any other trader in the marketplace, which is to give advanced warning so as to confer some process of effective pre-approval in the hands of its competitor,” he said. ”Your honour’s reasons dealt only with the 10.1 device … as a matter of principle your orders should only deal with the 10.1 device,” Samsung’s counsel said.

Justice Bennett said Samsung would likely pre-announce any new future products and Apple would have ample opportunity to apply to the court for further injunctions.

“It does seem to me not to be warranted that the sort of order that you’ve sought be applied,” Justice Bennett said.

In previous hearings, Apple lawyers have revealed how the company sees the Galaxy Tab 10.1 as the main competitor to the iPad 2.

Apple has been granted an injunction preventing Samsung from releasing it’s Galaxy 10.1 tablet-pc in Australia until the case goes to court, the order is specifically for the 10.1 tablet-pc!

Samsung says it has filed for preliminary injunctions in courts in Australia and Japan, seeking a ban on sales of the iPhone 4S on the grounds it infringes Samsung’s technology patents

The South Korean semiconductor, consumer electronics and gadget behemoth says it is also seeking a sales ban on the iPhone 4 and iPad 2 in Japan. In May 2011 Apple won a temporary ban on sales of Samsung’s Galaxy 10.1 tablet in Australia.

“Apple has continued to violate our patent rights and free-ride on our technology. We will no longer stand idly by and will steadfastly protect our intellectual property,” Samsung said.

The filing in Japan cites infringement of technology patents, Samsung said, accusing Apple of also violating in Australia three of its wireless technologies essential for operating mobile phones. In a separate filing, Samsung also appealed against an Australian court’s interim order Friday to suspend sales of its Galaxy 10.1 tablet at the request of Apple, which claims a breach of touchscreen technology patents. Samsung, the world’s number two mobile phone maker after Nokia, and Apple have been embroiled in a series of patent suits accusing each other of copying designs and technology for their smartphones and tablets.

The legal battle over the $100 billion market began in April in the United States when Apple accused Samsung of “slavishly” copying its market-leading iPhone and iPad. Apple has since sought a ban on sales of Samsung’s Galaxy S smartphones and Galaxy Tab in Australia, Germany and other countries, prompting Samsung to file counter-suits. In the latest ruling, a Dutch court Friday rejected a bid by Samsung to ban sales of Apple’s 3G phones and tablet devices there due to alleged patent infringements of wireless technologies.

Samsung is also seeking to block sales of the iPhone 4S in Italy and France in separate suits. The new model went on sale in many markets last week. The Korean firm is pressing Apple hard in the lucrative smartphone business. Apple shipped 20.3 million smartphones worldwide in the second quarter of this year compared to Samsung’s 19.6 million.

Analysts say Samsung may have passed Apple in the third quarter thanks to its flagship Galaxy SII model unveiled in April. The company said the Galaxy series had achieved a combined total of 30 million global sales since the launch of the original Galaxy S last year. It said the SII accounted for more than 10 million of the total after selling faster than any other device in the company’s history.

Australians are making a mockery of a Federal Court injunction banning the sale of Samsung Galaxy Tab 10.1 tablets in Australia by ordering them from online stores. In the US, Samsung’s own lawyers were left red-faced after being unable to differentiate between Samsung’s and Apple’s tablets in court.

Samsung has been forbidden by Federal Court Justice Annabelle Bennett from selling or marketing the device in Australia until a full hearing in its patent infringement case with Apple, which isn’t expected to take place until next year. Justice Bennett said Apple had a prima facie case that Samsung infringed two of its patents. But online sellers on eBay, and web stores such as MobiCity.com.au, Expansys, Techrific and dMavo, are bypassing Samsung Australia and obtaining stock from other countries, such as Hong Kong.

GetPrice.com.au lists a slew of Australian sellers offering the Galaxy Tab 10.1 and there are more than 2000 results on eBay. Some, such as MobiCity, offer a 12-month Australian warranty. Maverick online seller Ruslan Kogan was also selling Galaxy Tab 10.1 units but withdrew them from the market after receiving legal threats from Apple. However, it appears the other sellers, many of which are hosted overseas, do not care about Apple’s threats.

A source at dmavo.com.au has said that the site was importing hundreds of Galaxy Tab 10.1 units to cater to a large influx of inquiries following the court injunction. The source said that he believed Apple had no basis for legal threats against dmavo.com.au, perhaps a little naive?

Apple and Samsung did not respond to requests for comment.

We have repeatedly asserted that Apples deplorable approach to patents is based on commerce, not at all on intellectual property, they see a commercial threat in Samsung and will do most anything to be rid of that threat.

The patent infringement battles around the globe are a strategy by Apple to delay the introduction of a serious competitor in the tablet and smartphone spaces. On Friday the Federal Court rejected Apple’s request to block or obtain advanced warning of any new Samsung tablet before it goes on sale. Justice Bennett did not sympathise with Apple’s fears that such measures were necessary because Samsung might launch a near identical product to the Galaxy Tab 10.1 in future under a different name. Samsung has yet to comment on its future tablet plans although this week it is slated to launch a new smartphone based on the next version of Google’s Android platform. Apple’s global patent infringement battle with Samsung now includes more than 20 cases in 10 countries.

In the US, District Judge Lucy Koh said that Samsung’s tablet infringed Apple’s iPad patents, but added that Apple had a problem establishing the validity of its patents. Apple is seeking to ban sales of the Galaxy Tab 10.1 tablet and the Galaxy S 4G phone in the US, but Koh has yet to make a ruling. Apple must show both that Samsung infringed its patents and that its patents are valid under the law.

Samsung attorney Kathleen Sullivan argued that in order to defeat an injunction bid, Samsung need only show that it has raised strong enough questions about the validity of Apple’s patents.

“We think we’ve clearly raised substantial questions,” Sullivan said at the hearing on Thursday in a San Jose, California federal court.

Apple attorney Harold McElhinny said Apple’s product design was far superior to previous tablets, so Apple’s patents should not be invalidated by designs that came before.

“It was the design that made the difference,” McElhinny said.

Koh frequently remarked on the similarity between each company’s tablets. At one point during the hearing, she held one black glass tablet in each hand above her head, and asked Sullivan if she could identify which company produced which.

“Not at this distance your honour,” said Sullivan, who stood at a podium roughly three metres away.

“Can any of Samsung’s lawyers tell me which one is Samsung and which one is Apple?” Koh asked. A moment later, one of the lawyers supplied the right answer.

A Dutch court on Friday dismissed Samsung’s claims of patent infringement by Apple, scuppering its bid to ban the sale of iPhones and iPads in the Netherlands. It also rejected Apple’s counterclaims in the case.

The ruling is a blow to Samsung, which has filed patent-infringement claims in France and Italy in order to ban the sale of the iPhone, just as Apple has started marketing the latest edition of its popular gadget iPhone 4S.

“Apple will be taking French and Italian translations of the Dutch ruling with it. This makes it a long shot for Samsung that it could win an injunction in the EU based on its 3G patents,” independent intellectual property expert Florian Mueller said.

Mueller published a new article over the weekend claiming the Australian injunction gave Apple ammunition to go after all Android device makers. It is not clear whether this will work out, and Summerfield said it might not be viable to launch so many court actions.

But Apple is known for its litigious nature and the Australian court case has revealed that Apple is unwilling to license some of its most valuable iPad patents to competitors, no matter what the price.

Mueller argues that the patents in the case are so broad that they cover all Android products, not just the Galaxy Tab 10.1.

The court has not found that the two patents are definitely infringed or even that Apple’s touchscreen patent is valid. These will be considered at the final hearing, likely next year, which will essentially determine whether to make the temporary injunction on the Galaxy Tab 10.1 permanent and whether Samsung is liable for damages.

As we have previously mentioned, there are ways of doing multitouch that do not involve Apple’s ‘heuristics’. Indeed, there is prior art showing other approaches. Apple’s patent is really so broad,  it may be invalid on the basis that it encompasses this prior art.

September 28, 2011:  Samsung – while stuck in the midst of litigation with Apple Inc –  has announced an agreement to cross-license their patent portfolios with that old behemoth that is Microsoft!

“Through the cross-licensing of our respective patent portfolios, Samsung and Microsoft can continue to bring the latest innovations to the mobile industry” said Samsung’s Hong Won-Pyo

Microsoft has said the deal with the South Korean electronics titan provides “broad coverage for each company’s products.”

The Redmond, Washington-based Microsoft said it will receive royalties for Samsung’s mobile phones and tablets running the Android mobile platform from Google.

Microsoft has accused Android, which is offered free to manufacturers by Google, of violating patents held by the US software giant.

Samsung’s Galaxy Tab tablet computer is powered by Android and is under attack from Apple, maker of the iPad, for patent infringement on several continents.

Apple is also involved in patent infringement lawsuits with Taiwan’s HTC, which also uses Google’s Android to power its mobile devices.

Under the agreement, Microsoft and Samsung will also cooperate in the development and marketing of Windows Phone, Microsoft’s mobile operating system.

“Microsoft and Samsung see the opportunity for dramatic growth in Windows Phone and we’re investing to make that a reality,” said Andy Lees, president of Microsoft’s Windows Phone Division.

What’s most enthralling about this deal is Microsoft’s ability to side with Samsung in challenging Apples iPad and iPhone patents – as mentioned below – Microsoft may have a claim to the rights of Tablet Computing Technology? afp

Apple and Samsung are at it again! Samsung is likely to delay the debut of it’s super swish Galaxy 10.1 Tablet in Australia. The Tablet is likely to be delayed beyond the agreed truce of September the  30th. Australian Federal Court Justice Annabelle Bennett said she needs more time to study Apple’s patent-infringement claims.

September 15, 2011: Seems like only weeks ago, retailers –including our favorite onliner, Kogan – were plotting routes around the voluntary Samsung ban on selling it’s new 10.1 tab in Australia.

Apple may have succeeded in delaying the release of the Samsung Galaxy Tab 10.1, but Kogan has come to the rescue for those that want a true Android Honeycomb -based competitor to the Apple iPad 2. It’s thinner, it’s lighter, and with Kogan’s pricing it’s actually cheaper than the iPad 2 as well. We’ve already done a rigorous comparison of the two tablets, but the short of it is that the Samsung Galaxy Tab 10.1 is in our view the first serious contender to the Apple iPad 2’s crown. With a big focus on design, particularly the need to be as thin (thinner, actually) than the iPad 2, the Tab doesn’t have the number of ports found on some other Android tablets. But not having many ports hasn’t exactly hurt the iPad 2. The two versions on offer are the 16GB Wi-Fi only model for $499 (grey and white), and the 16GB Wi-Fi + 3G model for $649 (grey and white). Compare that the to the Apple iPad 2 16GB Wi-Fi only model for $579 and the 16GB Wi-Fi + 3G model for $729.  Despite being a US model, Kogan claims the 3G will work just fine in Australia. There is a delivery fee that depends on where you live, but it’s fairly reasonable overall and still results in a product cheaper than the equivalent Apple iPad 2. There’s a 12 month warranty provided via Kogan, and the important point is that they’ll pay freight costs if you need to send the Galaxy Tab 10.1 off to the US to be repaired – via apcmag

Samsung had previously agreed not to sell the Galaxy Tab in Australia.

If Apple WINS this court case, expect an Amazon Kindle to be the closest NON -Apple branded Tablet on the market!

August 30, 2011: We missed out on the Cretaceous Period, got our start in the Devonian Period,  woke up to ourselves in the Pliocene and have been running straight toward the Litigious Period. As megaliths and behemoths battle it out over who owns what patent, and which gadget belongs to who, the consumer is likely to be the victim in what looks like warming to be a long and fierce battle. There seems to be the distinct possibility that more products would be blocked from sale, after Apple yet again blocked Samsung from selling its Galaxy.

Originally the launch of the Galaxy Tab 10.1 was delayed because Apple claimed Samsung was infringing on it’s patents.

The battle between Apple and Samsung was taken to a new level this week. Samsung’s counsel has agreed to delay any launch of the device until late September. The company has also complicated matters by stating it intends to counter-sue. To complicate matters, Samsung said that it intended selling two versions of the Galaxy Tab. Apple seems to be having a hard time  believing the rhetoric and claims both device infringe on its patents. The battle is only the latest round between the two companies.

The web technology weaves is getting more and more complex. As more consumer electronics monoliths start patenting technology, third party businesses starts acquiring patents, and manufacturers hold patent on components a complicated system overlap of what bit went into what gadget has arisen. Not that we’reclaiming innocence for anyone, we reckon there are rooms filled with boffins trying to broaden the line between someone elses patent and gee wizz look what we just made.

Clearly Samsung and Apple is the big news, it’s easy to overlook the big-picture though. Multiple patent lawsuits have been ongoing between giants including Apple, HTC, Google, Microsoft and Samsung. Amusement has also arisen over a recent patent bid, where Google accused Microsoft and Apple of teaming up to buy a trove of patents from Nortel. Google – being the awe inspiring strategist they are –  responded by purchasing the mobile business of Motorola, stating that its patent holdings were a key consideration in the decision.

Until now lawsuits have mostly been settled out of court, Apple has now demonstrated it is prepared to block the sale of devices point blank. This raises considerable problems for businesses, taking a product from development, through production, boxed and ready for store is an uber-expensive exercise if you can’t sell the darn thing. It is likely that many of these lawsuits will settle, however further litigation resulting in restrictions on sales should be expected.

Vendors need to position themselves to adequately manage customer expectation, as seen with the Galaxy Tab: a product doesn’t exist until the punter has it in hand. Ensuring that vendors have actual product is going to get nail biting, that the product will be defendable in court is possible going to be farce, wait for the Recalls and expect the Litigious Period to get a heap more tumultuous!?

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