It looks like the summer will be very hot when it comes to patent disputes, with the main attraction of this circus show being the Apple vs Samsung battle that’s just about to start in the U.S., the largest market for mobile devices, and hence, the most important one for both parties.
Just a few days ago we heard that Apple is asking for $2.525 billion in damages and royalties from the South Korean company, although it would rather choose injunctions against infringing products. The same company is willing to pay just half a cent to Samsung for the alleged 3G patent violations from iPhone and iPad models that make use of the wireless technology.
And just earlier today we heard that Apple was granted another pre-trial win in the U.S. case, an “adverse inference jury instruction,” which basically means the jury will have to consider that Samsung intentionally failed to provide certain evidence to Apple, as it intentionally or unintentionally destroyed it – automatically deleted emails between Samsung execs regarding the design changes of the Galaxy Tab 10.1 from initial announcement to launch.
Now it’s time to look at Samsung’s defense and attack strategies against Apple’s allegations. In its trial brief, the Android maker suggests that Apple’s patent infringement allegations are wrong and that Samsung has came up with similar iPhone-like devices long before the iPhone was announced, and therefore it has not copied Apple designs.
Moreover, the company also reiterates that Apple is using 3G technology from Samsung, which the iPhone maker failed to license under FRAND terms that Samsung offers to all major players in the business.
Here are some relevant quotes from Samsung’s brief, as presented by The Wall Street Journal:
Samsung has been researching and developing mobile telecommunications technology since at least as early as 1991 and invented much of the technology for today‘s smartphones. Indeed, Apple, which sold its first iPhone nearly twenty years after Samsung started developing mobile phone technology, could not have sold a single iPhone without the benefit of Samsung‘s patented technology.
For good measure, Apple seeks to exclude Samsung from the market, based on its complaints that Samsung has used the very same public domain design concepts that Apple borrowed from other competitors, including Sony, to develop the iPhone. Apple‘s own internal documents show this. In February 2006, before the claimed iPhone design was conceived of, Apple executive Tony Fadell circulated a news article that contained an interview of a Sony designer to Steve Jobs, Jonathan Ive and others. In the article, the Sony designer discussed Sony portable electronic device designs that lacked “excessive ornamentation” such as buttons, fit in the hand, were “square with a screen” and had “corners [which] have been rounded out.”
Also contrary to Apple‘s accusations, Samsung does not need or want to copy; rather, it strives to best the competition by developing multiple, unique products. Samsung internal documents from 2006, well before the iPhone was announced, show rectangular phones with rounded corners, large displays, flat front faces, and graphic interfaces with icons with grid layouts.
Prior to the iPhone‘s announcement in January 2007, Samsung was already developing numerous products and models with the same design features that Apple now claims were copied from the iPhone. In the summer of 2006, Samsung began designing its next generation of mobile phones, based on the market trend of ever-increasing screen size. At that time, Samsung‘s designers envisioned a basic design: a simple, rounded rectangular body dominated by a display screen with a single physical button on the face.
Apple‘s utility patents relate to ancillary features that allow users to perform trivial touch screen functions, even though these technologies were developed and in widespread use well before Apple entered the mobile device market in 2007. Samsung does not infringe any of Apple‘s patents and has located dead-on prior art that invalidates them.
Apple relied heavily on Samsung‘s technology to enter the telecommunications space, and it continues to use Samsung‘s technology to this day in its iPhone and iPad products. For example, Samsung supplies the flash memory, main memory, and application processor for the iPhone. . . . But Apple also uses patented Samsung technology that it has not paid for. This includes standards-essential technology required for Apple‘s products to interact with products from other manufacturers, and several device features that Samsung developed for use in its products.
Long before Apple even announced any of its 3G products that use Samsung‘s standards-essential technology, Samsung had offered licenses for these patents (along with other patents) to virtually every major player in the mobile phone industry, successfully striking cross-licensing deals with all of them. After Apple released products that use the technology patented in the [two standards-essential patents at issue in the trial], Samsung similarly offered a cross-licensing deal to Apple, asking for a fair and reasonable royalty in return for Apple‘s use of Samsung‘s technology. Unlike all the major players in the mobile phone industry, however, Apple refused to enter a cross-licensing deal with Samsung.
Instead, despite the fact that virtually every other major industry participant was willing to take a license from Samsung for use of the standards-essential patents in this suit, Apple claimed that Samsung‘s patents are unenforceable.
Samsung is clearly going to fight Apple as best it can to avoid injunctions or settlements that will hurt the company, both when it comes to the money it would owe Apple but also when it comes to its image.
Some of the arguments above has been heard before, just like Apple’s claims, and it will be interesting to see what jurors will think of the whole legal predicament.
However, the fact does remain that until the iPhone came along, Samsung was not the number one smartphone maker in the world. At the same time, neither of its touchscreen-only devices became hit products. The Galaxy S, responsible for the current Android revolution at Samsung, hit stores only in 2010, three years after the iPhone was launched.
This is not to say Samsung is infringing on Apple patents, or that Apple will win this one. But Samsung will have a tough battle ahead, especially since it has lost more pre-trial battles than Apple. Depending on what company you side with, you may use on of the following images to make your case against the other.
The first one shows us how Samsung handsets looked like before and Apple’s iPhone. So does that mean Samsung stole the design of the iPhone?
Let’s not forget that Apple was recently awarded a patent that pretty much explains how a post-iPhone smartphone or tablet works, and which is already seen as a dangerous weapon against Android.
The second one shows us that Samsung had iPhone-like devices in mind before the iPhone hit stores in 2007. But then how will Samsung respond to the obvious question: why weren’t any of them a best-selling device capable to take Samsung to the top of the mobile business, a business that was unquestionably dominated by Nokia at the time?
Sure, Android OS was not available at the time, and if it was, some folks will say Google was more partial to a BlackBerry-like device design than touchcreen-based handsets.
More recently, Samsung was rumored to have designed the Galaxy S3 in collaboration with its legal team to avoid any potential attacks from Apple, and it has now started to remove the global search features of the phone as a pre-emptive measure against Apple – the iPhone maker used the ‘unified search’ to obtain an injunction in the U.S. against the Galaxy Nexus smartphone also made by Samsung.
Speaking of Android, Samsung can be considered, from one point of view, a collateral victim of Apple’s thermonuclear war on Google’s mobile operating system – and Android is targeted by plenty of other companies for alleged patent infringement, but that’s an entirely other story.
What’s clear is that the two companies will settle at some point in the near future, whatever that means for the mobile business. And even if their future deal will be protected by non-disclosure agreements, it will be pretty easy for smartphone and tablet users to observe the effects that this deal will have on future products.